Trump Appointee Carl Nichols Enjoins Trump from Stranding USAID Workers
There was a big development (and a few smaller ones) in DOGE’s [sic] attempts to start shutting down big parts — Treasury and Office of Personnel Management — of the government.
Before I look at those, I want to look at the order Trump appointee Carl Nichols (a former Clarence Thomas clerk) issued in a lawsuit two unions filed to enjoin the USAID shutdown.
The unions claimed the USAID shutdown violated:
- Separation of powers
- Take care clause
- Administrative Procedure Act because it was in excess of statutory authority
- Administrative Procedure Act because it was arbitrary and capricious
They described the death and destruction the shutdown has caused and will cause.
The agency’s collapse has had disastrous humanitarian consequences. Among countless other consequences of defendants’ reckless dissolution of the agency, halting USAID work has shut down efforts to prevent children from dying of malaria, stopped pharmaceutical clinical trials, and threatened a global resurgence in HIV.40 Deaths are inevitable. Already, 300 babies that would not have had HIV, now do.41 Thousands of girls and women will die from pregnancy and childbirth.42 Without judicial intervention, it will only get worse. The actions defendants plan to take on Friday will “doom billions of dollars in projects in some 120 countries, including security assistance for Ukraine and other countries, as well as development work for clean water, job training and education, including for schoolgirls under Taliban rule in Afghanistan.”43
And they asked for a Temporary Restraining Order on certain actions the government took, which Nichols (after a hearing) construed this way:
Plaintiffs frame their TRO request as pertaining to one overarching event: the allegedly “illegal and unconstitutional dismantling of USAID.” Mot. at 9. But 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.” Dep’t of State, Memo. 25 STATE 6828. The Court finds that a TRO is warranted as to the first two actions but not the third.
The request for a Temporary Restraining Order included declarations describing the injuries the shutdown has and will cause, including this one describing the harm a sudden move will cause to an employee’s two special needs kids.
This directive will have profound impacts on the wellbeing of my kids’ personal, educational and psychological development. I have two children at Post: a seven-year-old in first grade and a two-year-old in preschool. Both have received “Class 2” medical clearances from State MED and thus they receive a Special Needs Education Allowance (SNEA) for occupational therapy (OT). My older child has documented gross and fine motor skill delays due to prenatal intrauterine growth restriction (IUGR). My younger child also has documented gross and fine motor skill delays due to torticollis. Both children receive OT services in conjunction with their schooling in a purposefully integrated manner, a best practice promoted by specialists at the State Department ‘s Office of Child and Family Program (CFP) who oversee their care. Additionally, my older child who is in first grade was recently diagnosed by a licensed medical professional with ADHD and anxiety. They are now receiving Cognitive Behavioral Therapy (CBT) at Post from a licensed therapist and the Embassy Medical Unit is tracking their care.
Uprooting my children from their school, OT service providers, and child therapist in the middle of the school year will undoubtedly set back their development with possible lifelong implications. In the United States, we currently have no home or ties to a specific school district. My kids have lived overseas nearly their entire life in service of our country. There will be an inevitable gap – possibly a long one – before they are back in a stable routine of integrated schooling, OT services, and psychological services, a routine that medical professionals have determined they need to overcome developmental delays, and in the case of my seven-year-old, ADHD.
Or this one, describing the danger of losing access to security protections in high risk locations.
Personal Safety Risks: The shutdown could have life-threatening consequences for PSC colleagues serving in high-risk locations. The abrupt shutdown of government devices and access was highly reckless to colleagues in active conflict zones, such as Ukraine and Somalia. Friends and colleagues lost access to the Embassy safety communication channels, and many could no longer use a safety app called “Scry Panic 2.0,” which is installed on government-furnished equipment. In addition, many PSCs serving USAID abroad were unsure if they remained under U.S. chief-of-mission authority, which guarantees access to U.S. Government resources to ensure staff safety and accountability, including for emergency evacuations. U.S. Department of State officials, who were tasked with developing a plan to get USAID officials home, had no instructions or information on the next steps.
Many USAID PSCs work in high-risk environments where access to security resources is critical. I have heard from overseas colleagues who have now lost access to Diplomatic Security systems, meaning they can no longer coordinate security protocols, evacuations, or emergency procedures. Without official communication from USAID leadership, these PSCs remain in dangerous locations without clarity on whether they still have institutional protection. Others fear that in the event of a medical emergency or security threat, they will be forced to rely on personal funds or external assistance, as USAID has not provided guidance on whether existing security protocols still apply to them.
A risk exacerbated, the declaration explains, by the false claims launched against USAID staffers.
PSCs are also at increased risk of physical harm due to the threats, harassment, and misinformation that have accompanied the shutdown. The reckless rhetoric spread on social media and in political discourse has put USAID personnel at risk. I have heard from colleagues who have been labeled as criminals, supporters of terrorists, or Marxists—simply for doing their jobs.
High-profile figures, including Elon Musk and his supporters, have fueled this misinformation, creating a hostile environment where USAID staff fear for their personal safety. With individuals involved in the January 6th insurrection now released, there is a heightened sense of danger that USAID employees could be targeted next. I have colleagues who no longer feel safe in their own homes, with some refusing to leave family members alone out of fear that someone radicalized by online misinformation may try to harm them.
Judge Nichols cited both of those injuries in enjoining the government. He cited the latter risk when disputing the government claim that putting 2,700 USAID employees (500 of whom were already put on leave, the others would have been as of yesterday) was just a “garden-variety personnel action.”
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.” ECF No. 9-10 ¶ 14. 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.
And he cited the former injury when ruling that immediately recalling the officers overseas would create real injury, one not counterbalanced by any pressing government need.
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. Mot. at 18.
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.” ECF No. 9-5 ¶ 6. He also attests that, because his family has no home in the United States and his children have “lived overseas nearly their entire life,” there will be “an inevitable gap—possibly a long one—before they are back in a stable routine . . . that medical professionals have determined they need to overcome developmental delays.” Id. 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.” See ECF ECF No. 9-4 ¶ 7; ECF No. 9-5 ¶ 8; ECF No. 9-9 ¶ 6. 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.
But perhaps the most important language in Judge Nichols’ short opinion was his disdain for the government’s flimsy claims that the USAID employees have to be put on leave because of vague claims of fraud.
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.”
That is, when pushed to justify this purge to a sympathetic Trump appointee, DOJ simply couldn’t substantiate claims of fraud.
To be sure, Nichols only enjoined the government until February 14. And he didn’t reverse the freeze on funding — notwithstanding that the government likely lied in saying that the freeze only applied to prospective funding obligations.
As a threshold matter, the Court notes that there are significant factual questions about what the practical effect of that order is. The government argued at the hearing that the order only prevents USAID from entering “new obligations of funding”—leaving it free to pay out contracts that it entered into prior to January 24, 2025—and indeed, the text of the order does seem to permit that result. Dep’t of State, Memo. 25 STATE 6828. Yet, plaintiffs maintained at the TRO hearing that payments on existing USAID grants have been frozen, preventing certain “contracting officers” employed by USAID from using agency funds to fulfill monetary commitments that the agency had already made.
But Trump’s administration had a chance to substantiate the wild claims of fraud and abuse that Elon Musk has leveled at USAID.
And Carl Nichols was unimpressed.
“Fraud” is one of the few things a plaintiff has to plead with particularity, that is, specific factual allegations about who, what, when, and where. Vague notions, claims that it might be there, we need to look, shouldn’t be sufficient in any court room. Trump and Musk are unlikely to have those facts, unless they invent them.
I suspect that the ‘fraud and corruption’ claim is rooted in Leon Musk being butt hurt over USAID’s investigating Starlink:
(source: https://www.newsweek.com/usaid-elon-musk-starlink-probe-ukraine-2027054)
The fraud and corruption are supposed to be on the part of the target, not the accuser. But, let me know when the DoJ pleads that argument, trying to get around this order.
“ The fraud and corruption are supposed to be on the part of the target, not the accuser.” So true. Which makes this laughable yet sad. I expect a continuous firehose of fraud from the new guys.
Indeed, and the plaintiffs should use make a demand for preservation of records related to all records showing the existence of fraud at the date of the statement of counsel. The goal is to establish a claim under Rule 11, which requires lawyers to who sign pleadings not to interpose claims solely for delay.
The feds sued Illinois, Chicago, and Cook County claiming that our sanctuary city laws were unconstitutional for various dumb reasons. There are no factual allegations, merely a bunch of “on information and belief” claims, not even related to specific incidents. I’d guess a couple of cops told ICE agents about all the times some undocumented alien got arrested and then let go under our no cash bail laws. Which almost certainly didn’t happen. The feds say we’re interfering with them, again with no factual claim.
If we make demand for preservation of records we set up both Rule 11 and possibly an Abuse of Process counterclaim.
One appropriate sanction would be to revoke the Pro Hac Vice admission of the DC attorneys. That would have to be disclosed on future applications for Pro Hac status. Just sayin’.
The question now is whether this reckless Trump regime will make a serious attempt to comply? Or will they just pretend to comply but ultimately refuse.
On a Bulwark podcast yesterday, George Conway explained that the courts enforcement of their orders ultimately relies on the U.S. Marshals to arrest noncompliant persons for contempt. But they report to the executive branch. What happens when someone in their management chain orders them not to help enforce a court order against the federal government?
I saw that podcast and was quite rattled by it. Au fond, if court orders are not obeyed, then we are squarely in the realm of “LOL Nothing Matters.” If [insert MAGA criminal here] is ignoring court orders, why shouldn’t I? The law fails to act as a deterrent, and anarchy ensues. It’s terrifying, frankly.
Zero evidence to back government claims, and none of those making the claims are connected to actual sources – or accounting and finance people who would have a clue where to look for “corruption”. (I’d start with President Musk and Donnie’s cabinet.)
Who thinks Musk will actually abide by any injunction?
If he does not who enforce’s it and how? Bondi and DoJ?
Also begs the question how would anyone know if Musk does or does not abide by the injunction(s)? And once that bridge is burned…
I suppose determining some injunction’s compliance is – like the one referenced in this thread – is easier than any that, say, involve access to computer systems.
Isn’t it time to be at least one step ahead? Though I admit to drawing a bit of a blank as to how to do that.
IANAL, but I believe the term for ignoring a court order is “contempt of court”, so Hello SCOTUS. Then the real fun begins, assuming they don’t just duck and cover. But I think that trick can only work so long.
Musk’s appearance on the cover of Time has not pleased Trump. Trump, of course, would not likely be arrested. But if he so desires, Elon might.
The phrase “contempt of court” comes to mind if Musk et al. do not abide by an injunction, for which the court has various means of enforcement.
As for finding out if he abides by the injunction, there are a lot of folks watching what is happening right now, not the least of whom are the federal employees Musk is targeting — and their lawyers.
Peterr, why would Musk & Co *care* about “Contempt of Court”? They have freely expressed their contempt for everything and everyone else. What is about judiciously authority that we expect they are suddenly going to respect?
And would Carl Nichols truly enforce it?
Judge Nichols is wrong: the whim of the emperor is the pressing government need. By the 14th, I suspect he will have learned this .
I suspect not. Cynicism is warranted. But the line for doom scrolling starts on the right, waaay down there.
His ruling, and the executive’s response, helps develop a record for impeachment and removal purposes. Many have already been hurt, and no doubt many more will be hurt before congressional republicans act, but that is the remedy our constitution provides.
You and I can’t do anything about the babies dying of treatable diarrhea today, but please do what you can here & now, even if it is just protecting yourself.
This Republican Party will never do anything to stop Trump or Musk. Its leaders are already making excuses for them that don’t pass the smell test.
Congress and the impeachment process are broken. The latter especially is an unreliable mechanism to express anything but public outrage. Useful, but it won’t eject Trump, Vance, or anyone else from govt. Peaceful public gatherings of large numbers of people are also a tool in the citizen’s toolkit.
I do not disagree with these sentiments!
Conversation with Expert on Effective Nonviolent Protest:
Rebecca Solnit interviews Erica Chenoweth
https://meditations-in-an-emergency.ghost.io/the-nature-of-our-power-a-conversation-with-political-scientist-erica-chenoweth/
Has there been a single win for Trumpists in any of the rulings so far, among the Just Security Litigation Tracker list of lawsuits? https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/
I think it’s been like 7/nil so far.
Yes. Judge Bates denied some unions’ request for a TRO on DOGE’s [sic] access to DOL.
Thx. As eoh points out below, plaintiffs were given direction by Bates as to how to cure their standing deficiencies, and he did so with some specificity (see pages 6, 7, and 8, esp. the footnotes):
https://s3.documentcloud.org/documents/25516059/batesdenial.pdf
He gave the plaintiffs a pretty detailed road map. He also, had this retort to DOJ’s Girardi:
“Bates pushed back on the DOJ attorneys, saying they were asking him to have ‘a great deal of confidence in people who, according to public reports, are very young, who have never been in the federal government, who have never had any training with respect to the hands of confidential information.’
https://abcnews.go.com/US/judge-decide-block-doge-accessing-sensitive-labor-department/story
The unions also had this to say after the session (from the same abc report):
“Attorneys for the unions said they planned to amend their complaint over the weekend to include three other federal agencies: Health and Human Services, the Department of Education and the Consumer Financial Protection Bureau.”
To me, this doesn’t look like an “W” for the DOJ and DOGE. It looks very much like the union lawyers not having their ducks in a row and Bates giving them detailed instructions about how to get them in a row — and the unions subsequently raising the stakes.
Bates was one of Reagan’s early appointees as DC USA, and was Ken Starr’s right hand guy during the Clinton years. He was also one of W’s early appointees as a District Judge for DC. Along with the very rapid Nichols TRO that this post covers, the box score nationally looks pretty daunting for the Muskrats.
I hope the trend continues and is amplified by various courts’ findings being used in other cases around the country.
I think this is what Marcy’s talking about, from Anna Bower:
https://bsky.app/profile/annabower.bsky.social/post/3lhn2dzokos2o
February 7, 2025 at 9:17 PM
Bates did reportedly leave the door open for the plaintiffs to refile, and gave them information about how to cure their lack of standing.
Last year I paid over $46,000.00 in federal taxes. (This amount represents the mandatory 20% added to the price of my condo, which I bought outright by raiding my pension.)
The money that Musk & The Young and the Racist crew are fucking around with? That is MY money. It is YOUR money. We already paid it into the system, with the (contractual) expectation that the government would perform certain functions with it–and treat it with the standards of security and privacy all of us deserve.
They are taking OUR money. They are furtively, like a pack of rabid squirrels, doing secret things with it that will not benefit us but will, rather, in some (very secret!) way, make them richer and more powerful.
Why can’t we as taxpayers sue DOGE for misappropriation of funds?
Because taxes are no longer your money after you give it to the govt. That it’s still your money is a meme the hard right created and loves to exploit. And because it’s the govt that contracted with or negligently, intentionally, and or criminally allowed a third-party to access “govt” data.
SS and Medicare being insurance programs means that we’re paying premiums to them. It may not be our money once they get it, but we’re their *customers*, dammit, as well as their funders.
earl: What about the part where I have always overpaid federal (and state) taxes in expectation of getting a refund–isn’t *that* my money? I would assume I had been loaning it to the government for them to invest or otherwise benefit from, in return for them keeping it safe, much like a bank.
From Timothy Snyder’s latest, “Of course it’s a coup”:
“In gaining data about us all, Musk has trampled on any notion of privacy and dignity, as well as on the explicit and implicit agreements made with our government when we pay our taxes or our student loans.”
What I am talking about is the explicit agreement, relied upon by those of us who routinely pay taxes in advance and over the amount we expect to ultimately owe: not just that the amount appropriated by the government in actual taxes will be used as agreed to by congress, but that the remainder will be returned–and NOT used for the purposes of unelected billionaires and their racist little hacker friends.
Thank you for this question, and for the responses.
Attacking USAID as “fraud” is an easier sell than simply being opposed to charity to others. The MAGA crowd hates the idea of tax dollars going to foreigners, that’s an easy sell.
But the flip side, denying US aid to earthquake victims, refugees, starving children, that’s harder to sell. So fraud.
The fake fraud accusation serves another purpose as well. Shutting down USAID simply because you dislike charity would be impoundment, which is illegal, which is grounds for impeachment and removal from office. So two weeks in, Trump has already laid the groundwork for his own removal if he loses support in the House and Senate. But shutting down USAID for fraud would be a different matter. I’m guessing this fake accusation of fraud will be the fig-leaf his supporters in congress will use when they vote against impeachment.
It’s going to be like the 2020 election again. No evidence of fraud, ever. But, when pressed, members of congress will intone “… but there’s a lot of folk saying fraud …”
It may be an easy sell to MAGAts, but it’s quite a lift in court.
The accusations of fraud and corruption by the current crop of bigoted wingnuts is almost exactly the same as the Redeemers used to justify taking away the Afro-Americans right to vote and subsequent dismantling of the mutil-racial governments in several states that were created after the Civil War.
requesting info re same case # to learn why both are “active”:
i used the case # to search court listener, which gave 2 cases, both active, same judge, different CL# for 2023 case.
i’m using the same CL# as marcy, but not clear why.
the “active” 2023 case encompasses 6-page docket
i don’t understand why both use the same case # but different docket #s — it’s a new situation for me.
marcy:
1 – https://storage.courtlistener.com/recap/gov.uscourts.dcd.277213/gov.uscourts.dcd.277213.1.0_4.pdf
2 – https://www.courtlistener.com/docket/69619544/american-federation-of-government-employees-v-trump/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc
3 – Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision
2023:
1 – https://storage.courtlistener.com/recap/gov.uscourts.dcd.16/gov.uscourts.dcd.16.1.0_1.pdf
2 – https://www.courtlistener.com/docket/11707403/american-federation-of-government-employees-v-trump/?filed_after=&filed_before=&entry_gte=&entry_lte=&order_by=desc&page=1
3 – Nature of Suit: 380 Personal Property: Other
Evidently, there are rumors that MU$K has purchased $40 million worth of Super Bowl ad time
“in which he will expose the “fraud” and “corruption” at USAID”. [< WHOSE $$$ is that?]
https://bsky.app/profile/asharangappa.bsky.social/post/3lhr5hedcqs2m
February 9, 2025 at 12:23 PM
Links to:
Prebunking Elon Musk’s Super Bowl Propaganda Perception is reality.
Asha Rangappa 2/9/25
The game will be on at our house…:-(
Not interested in the teams, really, and it’s even WORSE because TRUMP will be there.
And NOW, this propaganda! UGGGHH!!
Jim WHITE is channeling harpie tonight :-):
https://bsky.app/profile/jimwhitegnv.bsky.social
hahahaha and we’re both in the pokey! <3 <3 <3
“They described the death and destruction the shutdown has caused and will cause.”
News for you:
The “death and destruction” will not be caused by the U.S.
But keep up your lies.