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Page 1 UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
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AMERICAN PUBLIC HEALTH ASSOCIATION;)
IBIS REPRODUCTIVE HEALTH;
)
INTERNATIONAL UNION, UNITED
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AUTOMOBILE, AEROSPACE, AND
)
AGRICULTURAL IMPLEMENT
)
WORKERS (UAW); BRITTANY CHARLTON; )
KATIE EDWARDS; PETER LURIE; and
)
NICOLE MAPHIS,
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Plaintiffs,
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v.
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NATIONAL INSTITUTES OF HEALTH;
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JAY BHATTACHARYA, in his official )
capacity as Director of the
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National Institutes of Health;
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UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN SERVICES; and ROBERT F. )
KENNEDY, JR., in his official
)
capacity as Secretary of the
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United States Department of Health )
and Human Services,
)
)
Defendants.
)
___________________________________)
___________________________________
COMMONWEALTH OF MASSACHUSETTS;
STATE OF CALIFORNIA; STATE OF
MARYLAND; STATE OF WASHINGTON;
STATE OF ARIZONA; STATE OF
COLORADO; STATE OF DELAWARE;
STATE OF HAWAIʻI; STATE OF
MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF
NEW MEXICO; STATE OF NEW YORK;
STATE OF OREGON; STATE OF RHODE
ISLAND; and STATE OF WISCONSIN,
)
)
)
)
)
)
)
)
)
)
)
)
)
[1]
CIVIL ACTION NO.
25-10787-WGYPage 2 CIVIL ACTION NO.
25-10814-WGYPage 3 STROKE; NATIONAL INSTITUTE OF
NURSING RESEARCH; NATIONAL LIBRARY
OF MEDICINE; NATIONAL CENTER FOR
ADVANCING TRANSLATIONAL SCIENCES;
JOHN E. FOGARTY INTERNATIONAL
CENTER FOR ADVANCED STUDY
IN THE HEALTH SCIENCES; NATIONAL
CENTER FOR COMPLEMENTARY AND
INTEGRATIVE HEALTH; and CENTER
FOR SCIENTIFIC REVIEW,
)
)
)
)
)
)
)
)
)
)
)
Defendants.
)
___________________________________)
YOUNG, D.J.
July 2, 2025
FINDINGS OF FACT, RULINGS OF LAW, AND
ORDER FOR PARTIAL SEPARATE AND FINAL JUDGMENT
I.
INTRODUCTION
These consolidated actions are two of many in this
district, and across the Nation, claiming that current Executive
Branch policies, mostly through Executive Orders, have been
implemented by various agencies in violation of the
Administrative Procedure Act, statutory law, and the
Constitution.
Based upon the evidence presented at the hearing
on the APA claims and bench trial of the remainder, this Court
concludes what has been occurring at the Department of Health
and Human Services (“HHS”) and the National Institutes of Health
(“NIH”) with respect to its disruption of grants, the grant
making process and the pipeline of future scientists by
[3]Page 4 forbidding by fiat certain topics, is on this Administrative
Record, illegal under the Administrative Procedure Act (“APA”).
After this Court collapsed the separate motions for
preliminary injunctions into a single consolidated trial
pursuant to Rule 65(a), and after hearing on the Administrative
Procedure Act claims and a bench trial on the Constitutional
claims (Phase One), in both actions save -- for the APA delay
claims (Phase Two), the Court provides its findings of fact and
rulings of law pursuant to Rule 52(a) of the Federal Rules of
Civil Procedure as to Phase One.
II.
PROCEDURAL HISTORY
In American Public Health Association et al. v. the
National Institutes of Health et al., Civ No. 25-10787 (“the
‘10787 Action”), the American Public Health Association
(“APHA”), Ibis Reproductive Health, the International Union,
United Automobile, Aerospace, and Agricultural Implement
Workers, Dr. Brittany Charlton, Dr. Katie Edwards, Dr. Peter
Lurie, and Dr. Nicole Maphis (collectively, “the APHA
Plaintiffs”) seek declaratory and injunctive relief against the
National Institutes of Health (“the NIH”), NIH Director Jay
Bhattacharya in his official capacity, and Secretary of Health
and Human Services Robert F. Kennedy, Jr. in his official
capacity.
[4]Page 5 Similarly, in Commonwealth of Massachusetts et al. v.
Kennedy et. al., Civ No. 25-10814 (“the ‘10814 Action”), the
Commonwealth of Massachusetts along with 15 other States1
(referred to collectively as “the State Plaintiffs”), sue
Secretary Kennedy, the Director Bhattacharya, and the federal
institutes and centers2 (in both actions the defendants are
referred here collectively as “the Public Officials” and the
APHA Plaintiffs and State Plaintiffs referred to collectively as
In addition to the Commonwealth of Massachusetts, the
State of California, the State of Maryland, the State of
Washington, the State of Arizona, the State of Colorado, the
State of Delaware, the State of Hawaiʻi, the State of Minnesota,
the State of Nevada, the State of New Jersey; the State of New
Mexico; the State of New York, the State of Oregon, the State of
Rhode Island; and the State of Wisconsin join as plaintiffs.
2
Those ICs are: the National Cancer Institute, the
National Eye Institute, the National Heart, Lung, and Blood
Institute, the National Human Genome Research Institute, the
National Institute on Aging, the National Institute on Alcohol
Abuse and Alcoholism, the National Institute of Allergy and
Infectious Diseases, the National Institute of Arthritis and
Musculoskeletal and Skin Diseases, the National Institute of
Biomedical Imaging and Bioengineering, the Eunice Kennedy
Shriver National Institute of Child Health and Human
Development, the National Institute on Deafness and Other
Communication Disorders, the National Institute of Dental and
Craniofacial Research, the National Institute of Diabetes and
Digestive and Kidney Diseases, the National Institute on Drug
Abuse; the National Institute of Environmental Health Sciences,
the National Institute of General Medical Sciences, the National
Institute of Mental Health, the National Institute on Minority
Health and Health Disparities, the National Institute of
Neurological Disorders and Stroke, the National Institute of
Nursing Research, the National Library of Medicine, the National
Center for Advancing Translational Sciences, the John E. Fogarty
International Center for Advanced Study in the Health Sciences,
the National Center for Complementary and Integrative Health,
and the Center for Scientific Review.
1
[5]Page 6 Both actions arise from the NIH’s newly-
minted war against undefined concepts of diversity, equity and
inclusion and gender identity, that has expanded to include
vaccine hesitancy, COVID, influencing public opinion and climate
change.
The actions were randomly reassigned to this Court on May
1, 2025.
Elec. Notice Reassignment, ECF No. 99.
The Court
collapsed the motions into a trial on the merits pursuant to Rule 65(a) of the Federal Rules of Civil Procedure.3
The Court
has ruled on jurisdictional issues and a broader motion to
dismiss. See Mem. & Order, ‘10787 Action, ECF No. 84; Mem. &
Order, ‘10817 Action, ECF No. 105.
The trial was divided into two phases largely based on the
APA claims, but each phase including other claims: Phase One,
APA Section 706(2) (primarily arbitrary and capricious claims)
and concomitant statutory and constitutional claims), and Phase
Two, Section 706(1) (primarily the delay claims).
The Court held a full hearing and bench trial as to Phase
One.
At the conclusion of the trial of Phase One, the Court
The Court acknowledges that its usual process is
expeditious, it observes that while this matter has proceeded to
trial, injunctive relief has recently issued as to other actions
relating to HHS’s and the NIH’s actions. See New York v.
Kennedy, No. 25-CV-196-MRD-PAS, 2025 WL 1803260, at *13 (D.R.I.
July 1, 2025); Massachusetts v. Nat'l Institutes of Health, 770
F. Supp. 3d 277 (D. Mass. 2025) (Kelley, J.), judgment entered,
No. 1:25-CV-10338, 2025 WL 1063760 (D. Mass. Apr. 4, 2025).
3
[6]Page 7 ruled from the bench that the Challenged Directives taken as a
whole, were arbitrary and capricious final agency action, as
well as were the terminations of the grants in accordance
therewith; the Court took the rest of the matter under
advisement.
The Court now provides its complete findings of
fact and rulings of law as to so much of Phase One as pertains
to the APA claims raised therein and addressed from the bench4 as
Time is of the essence in this equity case. For that
reason, the Court entered a partial judgment under Fed. R. Civ.
P. 54(b) to allow for a prompt appeal of a “clean” decision on
the APA claims. Partial Final Judgment, ‘10787 Action, ECF No.
138; Partial Judgment, ‘10814 Action, ECF No. 151. Quite
properly, the Public Officials have promptly appealed. Notice
of Appeal, ‘10787 Action, ECF No. 139; Notice of Appeal ‘10814
Action, ECF No. 152. The Public Officials sought a stay pending
the appeal, which this Court denied. See Order, ‘10787 Action,
ECF No. 147; Order, ‘10814 Action, ECF No. 160.
4
On the ground, while the HHS continues to repeat its nowfamiliar dirge of empty triumphalism, see
https://www.reuters.com/business/healthcarepharmaceuticals/federal-judge-says-trump-cuts-nih-grants-areillegal-politico-
the NIH appears to be
working in good faith to reassemble its grant-making machinery.
See e.g., https://www.nytimes.com/2025/06/25/science/nih-grantterminations-halted.html;
https://www.science.org/content/article/nih-will-reinstate-900grants-response-court-order;
https://www.masslive.com/news/2025/06/20-nih-grants-restored-toumass-system-after-judge-rules-against-trump-admin.html
More is required to be done on Phase One. In addition to
ruling on Constitutional law questions, the Court must address:
Racial Discrimination – Constitutionally Prohibited
The Court has found as fact that there was pervasive racial
discrimination in selecting grants for termination. It needs to
[7]Page 8 fashion a permanent injunction to prevent any continuation of
this practice.
Gender Discrimination – Statutorily Prohibited
Speaking from the bench following closing arguments, the
Court had not sufficient time to analyze and reflect on the
administrative record such that it could make a finding of
gender discrimination. Now it has.
The Court finds by a fair preponderance of the evidence
that the grant terminations here at issue demonstrate an
unmistakable pattern of discrimination against women’s health
issues. The Court thus needs to afford the parties a chance to
present evidence of the harm resulting from such terminations
and, in the absence of such evidence, whether this is one of
those cases “likely of repetition but evading review.”
LGBTQ+ Discrimination – No Federal Remedy
This Court’s factual finding that there has been extensive
discrimination against everyone whose lived experience of their
sexuality is in any way different from the executive orthodoxy
expressed in the President’s fiat, see Exec. Order 14168, 90
Fed. Reg. 8615 (Jan. 20, 2025), is fully affirmed. What changed
in the days following this Court’s finding is the Supreme
Court’s teaching concerning these matters. I had thought the
factual finding warranted a more complete equal protection
analysis. The decision in United States v. Skrmetti, 145 S. Ct.
1816, 1832 (2025) quite clearly forecloses such analysis.
Justice Barrett’s concern about imprecision in language
addressing these matters, and the skepticism of Justices Thomas
and Alito about the role of science, Id. at 1851 (Barrett, J.,
concurring); 1852 (Thomas, J., concurring), 1867 (Alito, J.,
concurring) leads this Court to conclude that, while here there
is federal government discrimination based on a person’s status,
not all discrimination is pejorative. After all, setting the
voting age, excluding felons from the franchise, and regulating
a young person’s access to obscene material, see Free Speech
Coal., Inc. v. Paxton, No. 23-1122, 2025 WL 1773625, at *9 (U.S.
June 27, 2025); Simmons v. Galvin, 575 F.3d 24, 42 (1st Cir.
2009), all “discriminate” based upon an individual’s status.
They all fall within the state’s police powers. This Court is
thus not warranted in considering injunctive relief as to an
officer of the United States on this ground (despite the fact
that these grant determinations were here arbitrary and
[8]Page 9 required under Rule 52(a) of the Federal Rules of Civil
Procedure.
III. FINDINGS OF FACT
A.
The National Institutes of Health –- The World
Standard of Research
The HHS is an Executive Agency of the United States.
generally, 42 U.S.C. § 3501a et seq.
See
The National Institutes of
Health is an agency of the HHS, and is comprised of 27 separate
institutes and centers (“ICs”) that focus on certain diseases or
human body systems.
The NIH is run by its Director.
Under the Director, there
are five deputy directors: (1) Principal Deputy Director; (2)
Deputy Director for Intramural Research; (3) Deputy Director of
Extramural Research; (4) Deputy Director for Management; and (5)
Deputy Director for Program Coordination, Planning, and
Strategic Initiatives.
See https://www.nih.gov/about-
nih/organization/nih-leadership.
Congress, through the Public Health Service Act (“the
PHSA”), 42 U.S.C. § 201 et seq., mandates that the Secretary of
HHS promote research “relating to the causes, diagnosis,
capricious under the APA) because, at least as to puberty
blockers, what is a denial of equal protection of the laws in
some states is sound public policy in Tennessee.
This Court regrets serving up matters for appeal on a
piecemeal basis but the exigencies of an equitable action and
unfolding reality require it.
[9]Page 10 treatment, control, and prevention of physical and mental
diseases and impairments,” including by, among other things and
relevant here, offering “grants-in-aid to universities,
hospitals, laboratories, and other public or private
institutions, and to individuals.” 42 U.S.C. §241(a)(3).
NIH has similar statutory mandates.
The
42 U.S.C. §§ 282(b),
284(b).
Congress requires the NIH operate predictably and with
stability, not just for its understanding of how the NIH is
fulfilling its duties to the American people, but also to
provide a predictable path for researchers.
Specifically,
Congress by statute requires the NIH to provide a “National
Institutes of Health Strategic Plan” (the “Strategic Plan”)
every six years in order “to provide direction to [the NIH’s]
biomedical research investments.” Id. §282(m)(1).
The Strategic Plan’s purpose is manifold: providing
direction to NIH’s research investment, increasing efficiencies
across the ICs, leveraging scientific opportunity, and advancing
biomedicine.
5
Id.
5
Section 282(m)(1) provides:
[A]t least every 6 years . . . the Director of the
National Institutes of Health shall develop and submit
to the appropriate committees of Congress and post on
the Internet website of the National Institutes of
Health, a coordinated strategy (to be known as the
“National Institutes of Health Strategic Plan”) to
[10]Page 11 The Strategic Plan forms the foundation of the NIH’s work.
Indeed, NIH is mandated to “ensure that scientifically based
strategic planning is implemented in support of research
priorities as determined by the agencies of the National
Institutes of Health, and through the development,
implementation, and updating of” the Strategic Plan.
42 U.S.C.
§ 282(b)(5) (emphasis added).
The Strategic Plan is required to “identify strategic
priorities and objectives in biomedical research” of areas such
as assessment of the “state of biomedical and behavioral
research” and opportunities therein, “priorities and objectives
to advance the treatment, cure and prevention of health
conditions,” “emerging scientific opportunities,”
challenges” and “scientific knowledge gaps.”
282(m)(2)(A).
“health
42 U.S.C. §
The Strategic Plan is also required to identify
“near-.mid-,and long term scientific needs.”
Id.
The Strategic Plan is a statutorily imposed collaboration,
requiring the NIH to consult “with the directors of the national
[(1)] provide direction to the biomedical research
investments made by the National Institutes of Health,
[(2)] to facilitate collaboration across the
institutes and centers, [(3)] to leverage scientific
opportunity, and [(4)] to advance biomedicine.
42 U.S.C. § 282(m) (emphasis added).
[11]Page 12 research institutes and national centers, researchers, patient
advocacy groups, and industry leaders.”
42 U.S.C. § 282(m)(4)
Congress historically has paid close attention to its taxdollar investments in medical, health and behavioral research.
In some cases, it has expressed its research priorities directly
in the PHSA, see e.g. Section 283(p).
For example, Congress has
by statute created ICs dedicated to certain systems, and
minority populations.
The NIH is the primary source of federal funding for
biomedical research in the United States, and is the largest
public funder of biomedical research in the world.
Due to its
operations, NIH has contributed to profound medical
breakthroughs and through its funding trains future generations
of scientists.
It is tax-payer investment in the health and
welfare not just of Americans, but humanity.
Broadly, the NIH
performs research within federal facilities, also called
“intramural” research.
It also supports research through
funding of competitive grants to researchers and institutions
outside the federal system.
This is known as “extramural”
research, and is what is at issue in these consolidated actions.
The NIH’s process to allocate funding from Congress for
extramural research is covered by several statutes and
regulations.
See 42 C.F.R. § 52 et seq.; .
The Court presumes
the parties’ familiarity with the process, but broadly, with
[12]Page 13 respect to extramural research, researchers must apply to the
NIH for funding.
The NIH, in line with its priorities, invites
proposals for grants through what is known as “Notice of Funding
Opportunity” (“NOFO”).
In simple terms, the applications go
through a three-step process: a scientific review group, and if
successful, then to the advisory council.
If the application is
approved by the advisory council, their recommendation proceeds
to the IC’s director who makes the ultimate funding decision.
Grants are, understandably, oftentimes not a one-time
event.
Research takes time, often requiring continuation grants
or multiple grants.
The NIH’s framework of stability and
predictability has proven itself time and again over the past
several decades over multiple administrations.
It is one reason
the United States, through the support of the hard-working
government workers at HHS and the NIH, in partnership with the
scientific research community, has been unsurpassed in its
contributions to breakthroughs in science that have enhanced our
lives.
To be sure, there are priorities, as funding is not
unlimited, and administrations each have differing views on what
those priorities ought be, but the NIH’s priority changes have
been predictable.
What is clear is that Congress intends for
the NIH to operate with Congressional oversight and certainly
some statutory direction, but by and large leaves the science to
the scientists.
Indeed, the American people have enjoyed a
[13]Page 14 historical norm of a largely apolitical scientific research
agency supporting research in an elegant, merit-based approach
that benefits everyone.
That historical norm changed on January 20, 2025.
The new
Administration began weaponizing what should not be weaponized –
- the health of all Americans through its abuse of HHS and the
NIH systems, creating chaos and promoting an unreasonable and
unreasoned agenda of blacklisting certain topics, that on this
Administrative Record, has absolutely nothing to do with the
promotion of science or research.
B.
Timeline of Events
1.
January 20, 2025 – January 21, 2025 -- Executive
Orders 14151, 14168, and 14173 are issued.
The Executive Branch decided early on, through Executive
Orders, to focus on eradicating anything that it labels as
Diversity, Equity and Inclusion (“DEI”), an undefined enemy.
No
one has ever defined it to this Court –- and this Court has
asked multiple times.
Indeed, as will be demonstrated, while
the Executive, HHS, and the NIH certainly identify the acronym
DEI and its component words, it’s definition is purely circular
reasoning: DEI is DEI.
It also is focused on gender identity as
a priority, proclaiming through Executive Orders its concerns.
The Executive Branch, of course, has every right to espouse its
views, and this Court opines on neither their veracity nor
[14]Page 15 Nevertheless, the Executive Orders lay the groundwork
for what occurred at HHS and the NIH.
a.
Executive Order 14151
On January 20, 2025, the President issued Executive Order
No. 14151, entitled "Ending Radical and Wasteful Government DEI
Programs and Preferencing."
Exec. Order 14151, 90 Fed. Reg.
8339 (Jan. 20, 2025) (“EO 14151”).
EO 14151 focuses on ending
what the Executive views as a perceived “infiltration” of the
federal government
of “illegal and immoral discrimination
programs of the Biden Administration going by the name
‘Diversity, Equity and Inclusion’”.
Id.
EO 14151 posits that
DEI is mutually exclusive to “serving every person with equal
dignity and respect.”
Id.
Under the guise of “making America
great,” EO 14151 instructs the Attorney General and others to
"coordinate the termination of all discriminatory programs,
including illegal DEI and 'diversity, equity, inclusion, and
accessibility' (DEIA) mandates, policies, programs, preferences,
and activities in the Federal Government, under whatever name
they appear."
Id.
EO 14151 does not define DEI.
Additionally,
and pertinent here, EO14151 directs each federal agency head to
"terminate, to the maximum extent allowed by law, all 'equityrelated' grants or contracts" within 60 days.
broad, undefined contours.
Id.
This too has
As one Court recently noted, “‘[t]he
vagueness of the term ‘equity-related’ grants or contracts
[15]Page 16 invites arbitrary and discriminatory enforcement and does not
provide sufficient notice to grantees as to what types of speech
or activity they must avoid to prevent termination of their
grants or contracts -- compelling grantees and grant applicants
to steer far too clear of the forbidden area of anything related
to the broad and undefined term of equity.’” San Francisco
A.I.D.S. Found. v. Trump, No. 25-CV-01824-JST, 2025 WL 1621636,
at *21 (N.D. Cal. June 9, 2025) (cleaned up).
b.
Executive Order 14168
On January 20, 2025, the President also issued Executive
Order 14168, "Defending Women from Gender Ideology Extremism and
Restoring Biological Truth to the Federal Government."
The
President claims that women need protection from transgender
persons:
Efforts to eradicate the biological reality of sex
fundamentally attack women by depriving them of their
dignity, safety, and well-being. The erasure of sex
in language and policy has a corrosive impact not just
on women but on the validity of the entire American
system. Basing Federal policy on truth is critical to
scientific inquiry, public safety, morale, and trust
in government itself.
Exec. Order 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025) (“EO
14168”).
The EO goes on to proclaim that "gender ideology"
somehow "replaces the biological category of sex with an evershifting concept of self-assessed gender identity," that it is a
“false claim,” and that "includes the idea that there is a vast
[16]Page 17 spectrum of genders that are disconnected from one's sex."
§2(f).
Id.
Pertinent here, the Executive seeks to stamp “gender
ideology” out: “Federal funds shall not be used to promote
gender ideology.
Each agency shall assess grant conditions and
grantee preferences and ensure grant funds do not promote gender
ideology.”
Id. §3(f).
c.
Executive Order 14173
On January 21, 2025, President issued Executive Order No.
14173, entitled "Ending Illegal Discrimination and Restoring
Merit-Based Opportunity."
Exec. Order 14173, 90 Fed. Reg. 8633
(Jan. 21, 2025) (“EO 14173”).
Similar to EO 14151, EO 14173
purportedly seeks to end "immoral race- and sex-based
preferences under the guise of so-called [DEI] or [DEIA]," and
the order requires the Director of the OMB to "[e]xcise
references to DEI and DEIA principles, under whatever name they
may appear, from Federal acquisition, contracting, grants, and
financial assistance procedures" and to "[t]erminate all
'diversity,' 'equity,' 'equitable decision-making,' 'equitable
deployment of financial and technical assistance,' 'advancing
equity,' and like mandates, requirements, programs, or
activities, as appropriate." Id. There is, conspicuously, no
definition of DEI.
[17]Page 18 January 21, 2021, The Pause Directive.
On January 21, 2025, HHS Acting Secretary Dorothy Fink
(“Acting Secretary Fink”), appointed January 20, 2025, ordered
an immediate communication pause until February 1, 2025.
(“the Pause Directive”).
[18]
R. 1.Page 19 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 19 of 103
rE
i . DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary
NX Washington, D.C. 20201
TO: Heads of Operating Divisions Head
Heads of Staff Divisions
THROUGH: Wilma M. Robinson, Ph.D., Deputy Executive Secretary
FROM: Dorothy A. Fink, MD, Acting Secretary
DATE: January 21, 2025
SUBJECT: Immediate Pause on Issuing Documents and Public Communications - ACTION
As the new Administration considers its plan for managing the federal policy and public
communications processes, it is important that the President's appointees and designees have the
opportunity to review and approve any regulations, guidance documents, and other public
documents and communications (including social media). Therefore, at the direction of the new
Administration and consistent with precedent, I am directing that you immediately take the
following steps through February 1, 2025:
1. Refrain from sending any document intended for publication to the Office of the Federal
Register until it has been reviewed and approved by a Presidential appointee. Please note
that the Office of the Executive Secretary (Exec Sec) withdrew from OFR all documents
that had not been published in the Federal Register to allow for such review and approval.
2. Refrain from publicly issuing any document (e.g., regulation, guidance, notice, grant
announcement) or communication (e.g., social media, websites, press releases, and
communication using listservs) until it has been reviewed and approved by a Presidential
appointee.
3. Refrain from participating in any public speaking engagement until the event and
material have been reviewed and approved by a Presidential appointee.
4. Coordinate with Presidential appointees prior to issuing official correspondence to public
officials (e.g., members of Congress, governors) or containing interpretations or
statements of Department regulations or policy. Nothing in this guidance is intended to
limit an employee’s personal correspondence with members of Congress or other third
parties, including an employee’s whistleblower protected communications.
5. Notify Exec Sec promptly of any documents or communications that you believe should
not be subject to the directives in paragraphs 1-4 because they are required by statute or
litigation; affect critical health, safety, environmental, financial, or national security
functions of the Department; or for some other reason. Please provide the title, a brief
summary, the target release date, and the rationale for expedited release to your Exec Sec
Policy Coordinator.
The President’s appointees intend to review documents and communications expeditiously and
return to a more regular process as soon as possible.
1
NIH_GRANTS_000001Page 20 Although referenced for completeness, this Challenged
Directive relates to Phase 2 of this Action, so will not be
discussed further at this time.
3.
February 10, 2025 -- The Secretarial Directive –Challenged Directive 2
On February 10, 2025, Acting Secretary Fink, issued the
following “Secretarial Directive on DEI-Related Funding” (“the
Secretarial Directive”):
Stylistically, this Court usually avoids inserting full
documents in its opinions lest bulk substitute for analysis.
Here, however, no paraphrasing can replace the originals and
convey what was actually going on.
6
[20]Page 21 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 21 of 103
porn,
ey
SE DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary
SS Washington, D.C. 20201
SECRETARIAL DIRECTIVE ON DEI-RELATED FUNDING
ane Hey,
February 10, 2025
The Department of Health and Human Services has an obligation to ensure that taxpayer dollars
are used to advance the best interests of the government. This includes avoiding the expenditure
of federal funds on programs, or with contractors or vendors, that promote or take part in diversity,
equity, and inclusion (“DEI”) initiatives or any other initiatives that discriminate on the basis of
race, color, religion, sex, national origin, or another protected characteristic. Contracts and grants
that support DEI and similar discriminatory programs can violate Federal civil rights law and are
inconsistent with the Department’s policy of improving the health and well-being of all
Americans.
These contracts and grants can cause serious programmatic failures and yet it is currently
impossible to access sufficient information from a centralized source within the Department of
Health and Human Services to assess them. Specifically, there is no one method to determine
whether payments the agency is making to contractors, vendors, and grantees for functions related
to DEI and similar programs are contributing to the serious problems and acute harms DEI
initiatives may pose to the Department’s compliance with Federal civil rights law as well as the
Department’s policy of improving the health and well-being of all Americans. It is also currently
impossible to assess whether payments the Department is making are free from fraud, abuse, and
duplication, as well as to assess whether current contractual arrangements, vendor agreements, and
grant awards related to these functions are in the best interests of the United States. See FAR
12.403(b), 49.101; 45 C.F.R. § 75.371-372. Finally, it is also impossible to determine with current
systems whether current contracts and grant awards are tailored to ameliorate these specific
problems and the broader problem of DEI and similar programs rather than exacerbate them. The
Department has an obligation to ensure that no taxpayer dollars are lost to abuse or expended on
anything other than advancing the best interests of the nation.
For these reasons, pursuant to, among other authorities, FAR 12.403(b) and 49.101 and 45 C.F.R.
§ 75.371- 372, the Secretary of Health and Human Services hereby DIRECTS as follows:
Agency personnel shall briefly pause all payments made to contractors, vendors, and
grantees related to DEI and similar programs for internal review for payment
integrity. Such review shall include but not be limited to a review for fraud, waste,
abuse, and a review of the overall contracts and grants to determine whether those
contracts or grants are in the best interest of the government and consistent with
current policy priorities. In addition, if after review the Department has determined
that a contract is inconsistent with Department priorities and no longer in the interest
of the government, such contracts may be terminated pursuant to the Department’s
authority to terminate for convenience contracts that are not “in the best interests of
the Government,” see FAR 49.101(b); 12.403(b). Furthermore, grants may be ,
terminated in accordance with federal law.Page 22 In what will be a common theme throughout the agency
action, Dr. Fink chose not to define DEI at all, but merely
echoed the EOs, lumping DEI -- whatever DEI is -- as somehow
“discriminatory” in nature.
Id.
Presumably, Dr. Fink, a highly
educated physician and acclaimed researcher,7 understood the
downstream effects of the absence of definition.
There is
conspicuously nothing else in the Administrative Record
concerning the Secretarial Directive.
Dr. Fink is currently Deputy Assistant Secretary for
Women’s Health and Director of the Office of Women’s Health in
the Office of the Assistant Secretary for Health at HHS. Her
biography is located https://womenshealth.gov/about-us/who-weare/leadership/dr-dorothy-fink.
7
[22]Page 23 February 12, 2025 -- The Lauer Memoranda
In the ensuing days, federal courts issued temporary
restraining orders against, among others, the NIH.
In response,
on February 12, 2025, Dr. Michael S. Lauer (“Dr. Lauer”), thenDeputy Director for Extramural Research at the NIH and Michelle
G. Bulls, NIH Chief Grants Management Officer (“CGMO Bulls”),
issued to the ICs a memorandum stating that NIH "is in the
process of reevaluating the agency's priorities based on the
goals of the new administration." R. 9.
That memorandum states
that the "NIH will effectuate the administration's goals over
time, but given recent court orders, this cannot be a factor in
[Institutions and Centers’] funding decisions at this time."
Id.
The memorandum also promised "[a]dditional details on
future funding actions related to the agency's goals will be
provided under a separate memo."
Id.
[23]
The memorandum in full:Page 24 The Court views this memorandum as hardly a ringing
endorsement of HHS’s Secretarial Directive of the Executive
Orders.
[24]Page 25 Nevertheless, that new guidance came the next day.
On
February 13, 2025, Dr. Lauer and CGMO Bulls issued another
memorandum to ICs Chief Grant Management Officers, that
announced "hard funding restrictions" on "awards where the
program promotes or takes part in diversity, equity, and
includsion [sic] ('DEI') initiatives" with restrictions applying
"to new and continuation awards made on or after February 14,
2025."
R. 16.
The memorandum also states that, "[i]f the sole
purpose of the grant, cooperative agreement, other transaction
award (including modifications), or supplement supports DEI
activities, then the award must be fully restricted.
The
restrictions will remain in place until the agency conducts an
internal review for payment integrity.”
2025 Memorandum is set forth in full:
[25]
Id.
The February 13,Page 26 It is unclear how the NIH could use this document to
determine the contours of DEI, where it does not define the
term, nor how to determine whether something “promotes or takes
[26]Page 27 part in diversity equity and inclusion . . . initiatives.”
Id.8
Further, it apparently relies upon the Secretarial Directive.
Id.
Consistent with the Administrative Record, NIH Chief
Grants Management Officer Michelle Bulls testified in another
federal action that she drafted the February 13, 2025 memorandum
with Dr. Lauer and acknowledged that the ICs would determine for
themselves what in fact DEI meant:
8
Q· · Do you recognize this document?
A· · Yes.
Q· · And you wrote this document, right?
A· · I wrote it with Dr. Lauer, yes.
Q· · Okay.· And what is it?
A
It's the supplemental -- it's the beginning of the
guidance providing agency - - I mean
ICs with guidance on how to unpause funding.
Q· · And it does say that there is a Restriction.· What's
the restriction that it gives guidance about?
A· · On spending funding related to DEI activities on
grants.
Q
Was there a definition of DEI activities
provided with this memo?
MS. ANDRAPALLIYAL:· Objection.· To the extent the
information sought is deliberative and not final, I'm
instructing the witness not to answer.
BY MR. McGINTY:
Q· · How are ICs supposed to determine if something fell
within DEI activities?
A· · They have scientific, the scientific background and
they know their programs, so the Grants Management
[27]Page 28 February 13, 2025 -– Deputy Director of
Extramural Research, Dr. Lauer Resigns and Liza
Bundensen is promoted as Acting Extramural
Research Director.
Deputy Director Lauer resigned that same day, effective
February 14, 2025.
See Second top NIH official, who oversaw
awarding of research grants, departs abruptly, Stat+ https:/,
/www.statnews.com/2025/02/13/nih-michael-lauer-deputy-directordeparts/.
Liza Bundesen (“Dr. Bundesen”) became acting director
of Extramural Research of the NIH after Dr. Lauer resigned.
That promotion was short-lived, as she resigned less three weeks
later on March 5, 2025.
April 3, 2025 Depo. Liza Bundesen 5,
State of Washington et al. v. Trump et al. , Civ No. 25-cv00244, ECF No. 276-8.
6.
February 21, 2025 -- The Memoli Directive –
Challenged Directive 5
On February 21, 2025, Dr. Matthew Memoli (“Acting Director
Memoli”), Acting Director of NIH, appointed by Dr. Fink, from
January 22, 2025 through March 31, 2025, see
https://www.nih.gov/about-nih/nih-almanac/leadership/nih-
officials work with the program officials to identify
DEI activities where it's not clear in the statute.
Dep. Michelle Bulls 99-100, Decl. Chris Pappavaselio, Ex. 41,
ECF No. 77-41. When asked about what statute, she assumed that
Minority Health Disparity Institute had some language, but
ultimately testified she did not know if “it ties directly, but
I think that is being used. And that’s an assumption, that’s
not facts.” Id.
[28]Page 29 directors/matthew-j-memoli-md-ms, and currently Principal Deputy
Director of the NIH, sent an email to Nina Schor, Deputy
Director for Intramural Research, Alfred Johnson, Deputy
Director for Management, and Dr. Bundesen, Deputy Director of
Extramural Research:
R. 2929.
It is unclear what Dr. Memoli told the recipients of
his email about the supposed “plan of action,” but on that same
date Dr. Memoli issued a Directive entitled “Restoring
Scientific Integrity and Protecting Public Investment in NIH
[29]Page 30 Awards” (“the Memoli Directive”), which was sent out by Deputy
Dr. Bundesen:
R. 3823.
The memorandum was attached:
[30]Page 31 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 31 of 103
Directive on NIH Priorities
Agency: National Institutes of Health
Office of the Director
Action: Directive
FOR FURTHER INFORMATION CONTACT:
National Institutes of Health
Office of the Director
EFFECTIVE DATE: February 21, 2025
Restoring Scientific Integrity and Protecting the Public Investment in NIH Awards
The National Institutes of Health (NIH) is the largest public funder of biomedical and behavioral
research in the world. The public trusts NIH with substantial funds to foster creative discoveries
that will improve health and prevent disease in this Country. Accordingly, NIH is committed to
promoting only the highest level of scientific integrity, public accountability, and social
responsibility in the programs it funds. And NIH promises to prioritize the funding of projects
that will generate a high return on the public’s investment, so that taxpayer dollars are not going
to waste. Every dollar should be used to make Americans live longer, healthier lives.
This mission requires NIH to ensure that it is not supporting low-value and off-mission research
programs, including but not limited to studies based on diversity, equity, and inclusion (DEI) and
gender identity. While this description of NIH’s mission is consistent with recent Executive
Orders issued by the President, I issue this directive based on my expertise and experience;
consistent with NIH’s own obligation to pursue effective, fiscally prudent research; and pursuant
to NIH authorities that exist independently of, and precede, those Executive Orders.
Research programs based primarily on artificial and non-scientific categories, including
amorphous equity objectives, are antithetical to the scientific inquiry, do nothing to expand our
knowledge of living systems, provide low returns on investment, and ultimately do not enhance
health, lengthen life, or reduce illness. Worse, DEI studies are often used to support unlawful
discrimination on the basis of race and other protected characteristics, which harms the health of
Americans. Therefore, it is the policy of NIH not to prioritize such research programs.
Likewise, research programs based on gender identity are often unscientific, have little
identifiable return on investment, and do nothing to enhance the health of many Americans.
Many such studies ignore, rather than seriously examine, biological realities. It is the policy of
NIH not to prioritize these research programs either.Page 32 The Memoli Directive notably picks up gender
identity language for the first time.
[32]Page 33 While Dr. Memoli claimed that this Directive is based upon
his “expertise and experience” and attempts to make it appear
the NIH was acting “independently” it is obvious that much, if
not all, of the content was provided to him by HHS.
Indeed, the
record reflects that HHS spoon-fed Dr. Memoli exactly what to
say in his Directive as later drafts of guidance confirm that
certain specific language was provided by HHS, even going so far
as to putting it in quotations:
R. 3280.
There is evidence in the record that on that same
date, Dr. Memoli was taking advice as to NOFOs that purportedly
did not align with the new objectives from Brian M. Smith, an
official in the so-called Department of Government Efficiency
(“DOGE”).
R. 3752-3753.
[33]Page 34 February 22, 2025 -- NOFOs Taken Down
On Saturday, February 22, 2025, Brad Smith of DOGE sent a
list to Dr. Memoli of NOFOs that in their view did not fall
within the Memoli Directive:
[34]Page 35 Dutifully, Dr. Memoli instructed Director Bundesen to
remove published NOFOs because of a lack of alignment:
[35]Page 36 Dr. Memoli then, equally dutifully, reported back to
DOGE:
[36]Page 37 DOGE acknowledged the response, providing what this
Court finds to be false deference by DOGE:
R. 3752.
8.
February 28, 2025 – The Grant Terminations Begin
On February 28, 2025, the first batch-terminations
[37]Page 38 Dr. Memoli forwarded a spreadsheet to Dr.
Bundesen, who forwarded it to CMGO Bulls.9
Consistent with the Administrative Record, Dr. Bundesen
testified that as for decisions on terminations, that DOGE was
involved in selecting the grants to be terminated, apparently
out of the blue:
9
Q
How did you first learn that grants were going to
be terminated on February 28th?
A
I received a text message over Microsoft Teams
from James McElroy. He said, Liza - - something to
the effect of: Liza, can you please get in touch with
Rachel Riley ASAP, she's been trying to reach you.
I'm paraphrasing.
I said, James, I'm sorry, I do not know who Rachel
Riley is. And then shortly thereafter, James called
me over a Microsoft Teams video call, and so he was
there and Rachel Riley was there. She - introduced
herself as being part of DOGE, who was working with
HHS.
And she informed me that a number of grants will need
to be terminated and that Matt Memoli will be sending
me an e-mail, a list of grants in an e-mail shortly
thereafter.
Q Did she explain why the grants were being
terminated?
A No.
Q Did you ask?
A She explained that -- excuse me, let me
clarify.
She said that the current administration's OGC has a
different opinion from the previous administration's
OGC on grant termination and, therefore, we will need
to terminate grants by the end of the day.
[38]Page 39 That email and spreadsheet is part of the record:
I did not ask what, you know, what grants because I
just literally was a little bit confused and caught
off guard. And so I waited to see what I would
receive by e-mail.
Q: And then what did you receive by e-mail?
A: I received an e-mail from Matt Memoli that said
something to the effect of: Liza, the attached list
of grants need to be terminated by COB today. And
there was an Excel file attached to the e-mail.
Bundesen Depo. 60 – 61.
[39]Page 40 Recall that Dr. Bundesen oversaw extramural
There is no evidence of any discussion, rather, the
evidence in the Administrative Record that Dr. Bundesen followed
orders that apparently went from Riley to Dr. Memoli to Dr.
Bundesen and on down the chain.
Smith is copied on this email.
CGMO Bulls’s testimony in another case confirms what the
Administrative Record reveals:
Q· · This is one of those letters that you've been
asked to send that you were just talking about?
A· · Yes.
Q· · And you signed this letter, right?
A· · Yes.
Q· · Okay.· And why did you send this letter?
A· · I was asked to send it.
Q· · Who asked you to send it?
A
My supervisor.
Q· · Okay.· And who is that?
A· · At the time, Liza Bundesen.
* * *
Q· · Did she tell you why she was asking you to
send it?
A· · Yes.
Q· · Okay.· And what did she say?
A· · That we were asked to terminate grants.
Q· · Did she tell you why you were asked to
[40]Page 41 terminate grants?
A· · She did not.
Q· · Okay.
A· · Can I correct the statement? The e-mail that I
received from Liza Bundesen indicated that we needed
to terminate the grants, and the language in the
letters were provided so I didn't question, I just
followed the directive.
Q· · Okay.
A· · She didn't say:· Terminate the grant because of.·
She said:· The list below.· So I just wanted to be
clear about that.
* * *
Q· · Okay.· And is that the same list that you
were talking about earlier that came from Rachel
Riley?
A· · That was on the same e-mail, yes.
Depo. Bulls 66-68.
CGMO Bulls describes the letters,
accurately, as “template letters”
Id.
She also testified that
but for her signature on the letters, she did not create any of
the language, which was provided by Rachel Riley, and that she
is unaware whether the NIH undertook any assessment at all as to
whether a particular grant met the criteria being espoused in
the letters.
Id.
The testimony concerning the February 28,
2025 letters comports with the Administrative Record, though the
grant described is not one before this Court:
Q· · So it says here -- actually, can you read
[41]Page 42 the fourth paragraph, the one that starts with, "This
award no longer effectuates."
A· · "This award no longer effectuates agency
priorities.· NIH is obligated to carefully steward
grant awards to ensure taxpayer dollars are used in
ways that benefit the American people and improve
their quality of life.· Your project does not satisfy
these criteria.· Research programs based on gender
identity are often unscientific, have little
identifiable return on investment, and do nothing to
enhance the health of many Americans.· Many such
studies ignore, rather than seriously examine,
biological realities.· It is the policy of NIH not to
prioritize these research programs."
Q· · Okay.· And this was part of the template letter
that Rachel Riley provided?
A· · Yes.
* * *
·
Q· · Was this edited in any way from the template
letter that Rachel Riley provided?
A· · No.
Q· · Okay.· It says, "Your project does not satisfy
these criteria."· Do you see that there?
A· · Yeah.
Q· · Are you aware of any assessment of Dr. Ahrens'
grant in particular that was made to see if her grant
satisfied the criteria?
A· · No.
Q· · Would you have been aware of such assessment if
one had been made?
A· · I don't know.
Q· · Okay.· Would you have been aware of such an
assessment if one had been made by NIH?
A· · Yes.
[42]Page 43 Q· · And it says, "Research programs based on
gender identity are often unscientific with little
identifiable return on investment, and do nothing to
enhance the health of many Americans." Did NIH do any
assessment of this particular grant to see if it was
unscientific?
A· I don't know.· The letter was provided and it was
sent.· I don't know what happened before ·8· ·that.
Q· · Well, did NIH do any assessment?
A· · I don't know.
Q· · You don't know if NIH did an assessment to
see if Dr. Ahrens' grant was scientific or not?
A· · Are you talking about -- I don't understand your
question, sorry.
Q· · Well, it says in this letter, and I
understand you didn't write it, but you signed it,
"Research programs based on gender identity are
often unscientific."· And that was the reason this
particular grant was terminated. ·Is that right?
A· · That's what the letter says.
Q· · That's what the letter says.· So I'm trying to
figure out whether or not there was any basis to think
that Dr. Ahrens' grant was unscientific.
A· · I don't know.
Q· · Okay.· And do you know if there was any
assessment to see if it had an identifiable return
on investment?
A· · No, I don't know.
Q· · Do you know if NIH did one?
A· · I don't know.
[43]Page 44 · Q· · Okay.· Would you have been aware if NIH
did one?
A· · I'm not sure.
Q· · Okay.· And it also says, "and do nothing
to enhance the health of many Americans." Do you know
if NIH did any assessment to see if Dr. Ahrens' grant
would enhance the health of many Americans?
A· · I don't know.
* * *
Q ·
Did Rachel Riley provide any other template letters
that were sent?
A· · Yes.
Q· · Okay.· What were those template letters about?
A· · In that [February 28, 2025] list, I don't recall.
Q· · How about any list for letters that had been sent?
A· · DEI activities, this language.· I think one on China.·
I don't know.· That's it that I can recall, and I'm
sure I'm blanking right now.
Q· · So what you remember is the gender identity language,
the DEI language, and the China. Was there language
on vaccine hesitancy that was used?
A· · In that batch, no.
Bulls Depo. 72 – 74.
CMGO Bulls later testified, again,
consistent with the Administrative Record, that Rachel Riley
provided the following DEI language in template letters:
· ·
Q
And then it says, "DEI:· Research programs based
primarily on artificial and non-scientific categories,
including amorphous equity objectives, are
antithetical to scientific inquiry, do nothing to
expand our knowledge of living systems, provides low
returns on investment, and ultimately do not enhance
[44]Page 45 health, lengthen life, or reduce illness.· Worse, so
called diversity, equity, and inclusion (DEI) studies
are often used to support unlawful discrimination on
the basis of race and other protected characteristics,
which harms the health of Americans. Therefore, it is
the policy of NIH not to prioritize such research
programs." ·That language also was provided by Rachel
Riley?
A
Id.
Yes.
90 - 91.
Consistent with the Administrative Record, CMGO
Bulls testified that she was provided lists with the categorical
reasons for termination, and she executed based on those lists.
She had no input into which grants were terminated or for what
reasons:
Q· · Okay.· But it's your testimony that the reason that
the grant is going to be terminated is provided to
you.· Is that right?
A· · That's right.
Q· · And you don't have any input into that?
A· · I don't.
Q· · Okay.· And you're testifying that the template letter
for each reason is provided to you. Is that right?
A· · Yes.
·
Q· · And you don't have any input into that either?
A· · I don't.
Id. 97 - 98.
From January 20, 2025 through April 2025, CMGO
Bulls had received “more than five lists” of grants to
terminate, and she estimated that at that time between 500 and
1,000 grants had been terminated.
Id.
[45]
98 – 99.
While therePage 46 had been a “handful” of noncompliance terminations of which the
NIH had undertaken between 2012 through January 20, 2025, Bulls
Depo. 46 (“My testimony is that it doesn’t happen often, more
than one and probably less than five.”), the current type of
terminations that were dictated from HHS had occurred only once
before during the prior Trump Administration.
Id. 47 -48.
The
Administrative Record is replete with a large number of these
new, dictated terminations.
The templates for these letters are all variations on a
theme, and has been dictated onto the NIH by Riley as a reasonfor-termination menu.
A good example is provided in full, but
the record is replete with examples of the templates being used:
[46]Page 47 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 47 of 103
PRIVILEGED, CONFIDENTIAL, PRE-DECISIONAL
FOR GRANTS ISSUED DECEMBER 2022-MARCH 2024 (TO BE DELTED)
[Address block & date]
[Grant recipient]:
Funding for Project Number [INSERT] is hereby terminated pursuant to the 2022 National
Institutes of Health (“NIH”) Grants Policy Statement,!? and 2 C.F.R. § 200.340(a)(2) (2023). This
letter constitutes a notice of termination. '*
The 2022 Policy Statement applies to your project because NIH approved your grant on
[INSERT DATE]. and “obligations generally should be determined by reference to the law in effect
when the grants were made.”!°
The 2022 Policy Statement “includes the terms and conditions of NIH grants and
cooperative agreements and is incorporated by reference in all NIH grant and cooperative
agreement awards.”!® According to the Policy Statement, “NIH may ... terminate the grant in
whole or in part as outlined in 2 CFR Part 200.340."!7 At the time your grant was issued, 2 C.F.R.
§ 200.340(a)(2) permitted termination “[b]y the Federal awarding agency or pass-through entity,
to the greatest extent authorized by law. if an award no longer effectuates the program goals or
agency priorities.”
This award no longer effectuates agency priorities. NIH is obligated to carefully steward
grant awards to ensure taxpayer dollars are used in ways that benefit the American people and
improve their quality of life. Your project does not satisfy these criteria. [INSERT
EXPLANATION—EXAMPLES BELOW
e China: Bolstering Chinese universities does not enhance the American people’s quality of
life or improve America’s position in the world, On the contrary. funding research in China
contravenes American national-security interests and hinders America’s foreign-policy
objectives.
e DEI: Research programs based primarily on artificial and non-scientific categories.
including amorphous equity objectives, are antithetical to the scientific inquiry. do nothing
to expand our knowledge of living systems, provide low returns on investment, and
ultimately do not enhance health, lengthen life, or reduce illness. Worse, so-called
diversity. equity, and inclusion (“DEI”) studies are often used to support unlawful
discrimination on the basis of race and other protected characteristics, which harms the
https://grants.nih.gov/grants/policy/nihgps/nihgps_2022 pdf.
1499 CFR. § 200.341(a): 45 C_FR. § 75.373
15 Bennett v. New Jersey, 470 U.S. 632, 638 (1985).
16 2022 Policy Statement at IIA-1.
" Td at TA-153.Page 48 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 48 of 103
PRIVILEGED, CONFIDENTIAL, PRE-DECISIONAL
health of Americans. Therefore, it is the policy of NIH not to prioritize such research
programs.
e Transgender issues: Research programs based on gender identity are often unscientific.
have little identifiable return on investment, and do nothing to enhance the health of many
Americans. Many such studies ignore, rather than seriously examine, biological realities.
It is the policy of NIH not to prioritize these research programs. ].
Although “NIH generally will suspend (rather than immediately terminate) a grant and
allow the recipient an opportunity to take appropriate corrective action before NIH makes a
“18 no corrective action is possible here. The premise of Project Number
termination decision.
[INSERT] is incompatible with agency priorities, and no modification of the project could align
the project with agency priorities.
Costs resulting from financial obligations incurred after termination are not allowable.!®
Nothing in this notice excuses either NIH or you from complying with the closeout obligations
imposed by 2 C.F.R. §§ 75.381-75.390. NIH will provide any information required by the Federal
Funding Accountability and Transparency Act or the Office of Management and Budget’s
regulations to USAspending.gov.*°
Administrative Appeal
You may object and provide information and documentation challenging this termination.”!
NIH has established a first-level grant appeal procedure that must be exhausted before you may
file an appeal with the Departmental Appeals Board.”
You must submit a request for such review to [the NIH Director or his designee] no later
than 30 days after the written notification of the determination is received, except that if you show
good cause why an extension of time should be granted, [the NIH Director or his designee] may
grant an extension of time.”
The request for review must include a copy of the adverse determination, must identify the
issue(s) in dispute, and must contain a full statement of your position with respect to such issue(s)
and the pertinent facts and reasons in support of your position. In addition to the required written
statement, you shall provide copies of any documents supporting your claim.”4
Sincerely,
18 2022 Policy Statement at ITA-154.
19 See 2 CFR. § 200.343 (2023).
202 CER. § 200.341(c): 45 CER. § 75.373(c)
21 See 45 CER. § 75.374.
> See 42 CFR. Part 50. Subpart D.
3 Id § 50.406 (a).
4 Td § 50.406(b).Page 49 R. 2482 - 2483.
9.
March 2025 -- The NIH Priorities Directives
Emerge
Between March 4, 2025, and March 25, 2025 internal staff
guidance was issued.
See March 4, 2025 email from CMGO Bulls to
Chief GMOs, R. 345.
The guidance is provided in full:
[49]Page 50 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 50 of 103
Staff Guidance —Award Assessments for Alignment with Agency Priorities - March
2025
Background
This staff guidance rescinds the guidance provided in the February 13, 2025, memo to IC Chief
Grants Management Officers entitled Supplemental Guidance — NIH Review of Agency Priorities
Based on the New Administration’s Goals. In accordance with the Secretarial Directive on DEI
Related Funding (Appendix 1), NIH will no longer prioritize research and research training programs
that focus on Diversity, Equity and Inclusion (DEI). Terminations that result from science that no
longer effectuates NIH’s priorities must follow the appeals guidance below. All other terminations
for noncompliance require, always, appeal language.
Prior to issuing all awards (competing and non-competing) or approving requests for carryover, ICs
must review the specific aims assess whether the proposed project contains any DE| research
activities or DEI language that give the perception that NIH funds can be used to support these
activities. To avoid issuing awards, in error, that support DEI activities ICs must take care to
completely excise all DEI activities using the following categories.
Category 1: The sole purpose of the project is DEI related (e.g., diversity supplements or
conference grant where the purpose of the meeting is diversity), and/or the application was
received in response to a NOFO that was unpublished as outlined above.
2 Action: ICs must not issue the award.
Category 2: Project partially supports DEI activities (i.e., the project may still be viable if
those aims or activities are negotiated out, without significant changes from the original
peer-reviewed scope) this means DE| activities are ancillary to the purpose of the project. In
some cases, not readily visible. This category requires a scientific assessment and requires
the GM to use the DEI Restriction Term of Award in Section IV of the Notice of Award, no
exceptions will be allowed without a deviation from the Office of Policy for Extramural
Research Administration (OPERA)/Office of Extramural Research (OER).
o Action 1: Funding IC must negotiate with the applicant/recipient to address the
activities that are non-compliant, along with the associated funds that support
those activities, obtain revised aims and budgets, and document the changes in the
grant file.
o Action 2: Once the IC and the applicant/recipient have reached an agreement, issue
the award and include the DEI Term and Condition of Award in Section IV of the
Notice of Award. Hard funds restrictions are not required.
= Note: Ifthe IC and the applicant/recipient cannot reach an agreement, or
the project is no longer viable without the DEI related activities, the IC
cannot proceed with the award. For ongoing projects, the IC must work with
OPERA to negotiate a bilateral termination of the project. Where bilateral
termination cannot be reached, the IC must unilaterally terminate the
project. Terminated awards (bilaterally or unilaterally) should follow the
process identified in Appendix 2.
NIH_GRANTS_002152
REET eePage 51 Again, no definition is provided for DEI.
Multiple appendices are provided, simply stating that it is “in
accordance with the Secretarial Directive,” which is included as
an appendix.
R. 2154 – 2155.
It also includes the boilerplate
language regarding DEI, “transgender issues,” and China:
[51]Page 52 Notably, Appendix 4 delves into renegotiated awards
concerning DEI activities.
Anticipating questions about an
[52]Page 53 undefined DEI, the NIH invites recipients to inquire before
drawing down funds.
Id.
Throughout March 2025, the Priorities
directive was modified for certain procedures, but the
boilerplate language of the reasons for termination did not
substantially vary.
10.
Friday, March 7, 2025 -- Deputy Director Bundesen
Resigns and Acting Director Memoli Appoints
Himself Acting Deputy Director of Extramural
Research
On Friday, March 7, 2025, a mere three weeks after
appointment as Acting Deputy Director of Extramural Research,
Director Bundesen resigned from the NIH.
11.
March 10, 2025
Dr. Memoli was in the thick of it, and he sent an email to
his Deputies and general counsel, expressing that week was going
to be busy:
[53]Page 54 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 54 of 103
From: Lorsch, Jon (NIH/NIGMS) [E]
To: Bulls, Michelle G. (NIH/OD) [E]
Subject: FW: OER
Date: Monday, March 10, 2025 9:15:25 AM
Attachments: 1VH Termination 3-10-25.xIsx
Importance: High
Category 5: Awards to Entities in certain foreign countries
o Additional guidance on awards to foreign entities is forthcoming. At this time, ICs should
hold all awards to entities located in South Africa or countries identified on any of the
following lists.
" State Department Countries of Particular Concern
® State Sponsors of Terrorism
= Final Rule Restricting Transfer of Personal U.S. Data to Countries of Concern
6
eePage 72 The March 25 Guidance settles on an examples list of:
"China," "DEI," "Transgender issues," “Vaccine Hesitancy",
"COVID-related" research:
[72]Page 73 R. 3226.
The March 25 Guidance also features an FAQ section that
includes, among other instructions:
[73]Page 74 In addition, "Notice of Funding Opportunity (NOFO)
Guidance," was listed as "[pending]."
R. 3228.
On May 15, 2025, it appears that Dr. Memoli was provided an
expanded list from the Office of General Counsel
[74]Page 75 Case 1:25-cv-10814-WGY Document163_ Filed 07/02/25 Page 75 of 103
Appendix 3 — Language provided to NIH by HHS providing examples for research activities that NIH no
longer supports.
China: “Bolstering Chinese universities does not enhance the American people’s quality of life or
improve America’s position in the world. On the contrary, funding research in China contravenes
American national-security interests and hinders America’s foreign-policy objectives.”
DEI: “Research programs based primarily on artificial and non-scientific categories, including
amorphous equity objectives, are antithetical to the scientific inquiry, do nothing to expand our
knowledge of living systems, provide low returns on investment, and ultimately do not enhance
health, lengthen life, or reduce illness. Worse, so-called diversity, equity, and inclusion (“DEI”)
studies are often used to support unlawful discrimination on the basis of race and other
protected characteristics ICO’s, which harms the health of Americans. Therefore, it is the policy
of NIH not to prioritize such research programs.”
Gender-Affirming Care: “Research programs based on gender identity are often unscientific,
have little identifiable return on investment, and do nothing to enhance the health of many
Americans. Many such studies ignore, rather than seriously examine, biological realities. It is
the policy of NIH not to prioritize these research programs.” Reminder: At this time, do not
terminate any grants related to gender identify/transgender without clearance from OER. All
such actions must be approved before any terminations.
Vaccine Hesitancy: “It is the policy of NIH not to prioritize research activities that focuses gaining
scientific knowledge on why individuals are hesitant to be vaccinated and/or explore ways to
improve vaccine interest and commitment. NIH is obligated to carefully steward grant awards to
ensure taxpayer dollars are used in ways that benefit the American people and improve their
quality of life. Your project does not satisfy these criteria.”
COVID (to be used for HHS/NIH OD directed terminations only): “The end of the pandemic
provides cause to terminate COVID-related grant funds. These grant funds were issued for a
limited purpose: to ameliorate the effects of the pandemic. Now that the pandemic is over, the
grant funds are no longer necessary.” Note: ICO’s may continue to support projects that funds
general biology of coronavirus not linked to COVID-19. As ICO’s conduct in-house analysis of
project portfolios related to COVID the term may change. Please work with OPERA to develop
standard terms based on the outcome of the analysis.
Climate Change: “Not consistent with HHS/NIH priorities particularly in the area of health effects
of climate change.”
Influencing Public Opinion: “This project is terminated because it does not effectuate the
NIH/HHS’ priorities; specifically, research related to attempts to influence the public’s opinion.”
R. 3536. Again, usage of this list was mandatory:
[75]Page 76 3541.
The terminations continued.
See March 26, 2025 (R. 1639 -
1641); March 31, 2025 (R. 2488); April 1, 2025 (R. 760-761;
1274-1276; 1376 – 1378; 1394 -1396); April 2, 2025 (R. 35 – 36;
3762 – 3803); April 7, 2025 (R. 1652); April 8, 2025 (R.
1653 -
1667); May 9, 2025 (R. 3452).
IV.
RULINGS OF LAW
A.
This Court Maintains Jurisdiction Save For
Category of China which has not Harmed these
Plaintiffs
This Court retains jurisdiction.
The Public Officials
press that the Court has no jurisdiction because their highlevel activities are interlocutory and the grant terminations,
claiming there is no final agency action under the APA.
With
the exception of grant terminations on the basis of China, all
of these arguments are rejected.
1.
The Plaintiffs Have No Standing as to the “China”
Category
The parties do not dispute that action has not been taken
concerning the category of “China.”
Accordingly, the Court
[76]Page 77 VACATES its earlier order solely as to this category, that does
not apply.
2.
Final Agency Action
Final agency action “includes the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act.”
5 U.S.C.A. § 551 (13),
and a “rule” thereunder “means the whole or a part of an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice
requirements of an agency.”
5 U.S.C. § 551(4).
“As a general
matter, two conditions must be satisfied for agency action to be
‘final’: First, the action must mark the ‘consummation’ of the
agency's decisionmaking process. . . -- it must not be of a
merely tentative or interlocutory nature.
And second, the
action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154 (1997).
The Challenged Directives, as a whole, constitute final
agency actions at the macro-level, and the resultant, downstream
individual terminations and other effects are also independent
final agency action as to each of the affected grants.
The
Public Officials attempts to narrow the action to grant
terminations and characterization of the Priorities Directives
[77]Page 78 by CMGO Bulls “as not independently challengeable”
oversimplifies the record and is a myopic view of the
Administrative Record.
Certainly, taking any particular document in isolation and
out of temporal context is superficially appealing.
But the
agency action here occurred in the context of a wholesale effort
to excise grants in 8 categories over a period of less than 90
days.
HHS directed NIH to cut without a plan and NIH, with the
assistance of DOGE, made it up as they went along, resulting in
a paper trail of the Challenged Directives.
The Public
Officials were trying to comply with an Executive Order 60-day
deadline.
See EO 14151 § 2 (B)(i) ("Each agency, department, or
commission head, in consultation with the Attorney General, the
Director of OMB, and the Director of OPM, as appropriate, shall
take the following actions within sixty days of this order: . .
. terminate, to the maximum extent allowed by law, all. .
.equity action plans," ‘equity’ actions, initiatives, or
programs, ‘equity-related’ grants or contracts”).
Their
expedition in implementation included all of the Challenged
Directives.
The Public Officials argue “that this case is
nothing like Biden v. Texas, where the agency directed personnel
to take all necessary actions to shut down an entire program.”
Trial Br. 11.
(2022).
(citing Biden v. Texas, 597 U.S. 785, 808–09
They are correct -– this is worse.
[78]Page 79 The pronouncements of HHS and NIH in the Challenged
Directives are consistent: they are final agency action on their
evolving “eradication” of DEI, gender identity, and other topics
ostensibly under the Executive Orders as quickly as possible.
While the President is not typically subject to the APA,
Franklin v. Massachusetts, 505 U.S. 788, 801 (1992), the
agencies implementing his orders certainly are.
New York v.
Trump, 133 F.4th 51, 70 n.17 (1st Cir. 2025) (“[T]he District
Court did not review the President's actions for consistency
with the APA.
Rather, it reviewed—and ultimately enjoined—the
Agency Defendants’ actions under the Executive Orders.”).
Indeed, “[t]he APA contains no exception for agency actions . .
. that carry out an executive order.”
Orr v. Trump, No. 1:25-
CV-10313-JEK, 2025 WL 1145271, at *15 (D. Mass. Apr. 18, 2025)
(Kobick, J.).
B.
The Administrative Procedure Act
“[F]ederal courts do not exercise general oversight of the
Executive Branch; they resolve cases and controversies
consistent with the authority Congress has given them.”
Trump
v. Casa, Inc., No. 24A884, 2025 WL 1773631, at *15 (U.S. June
27, 2025).11
Congress has provided such authority, in part,
Nor should it. As my colleague Chief Judge McConnell of
the District of Rhode Island recently wrote about our system of
government:
11
[79]Page 80 under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701
et seq.
Specifically, the APA provides that any “person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”
U.S.C. § 702.
5
It acts “as a check upon administrators whose
zeal might otherwise have carried them to excesses not
contemplated in legislation creating their offices,”
Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 391 (2024) (quoting
United States v. Morton Salt Co., 338 U.S. 632, 644 (1950)), and
“sets forth the procedures by which federal agencies are
accountable to the public and their actions subject to review by
the courts,” Department of Homeland Sec. v. Regents of the Univ.
Our founders, after enduring an eight-year war
against a monarch's cruel reign from an ocean away,
understood too well the importance of a more balanced
approach to governance. They constructed three coequal branches of government, each tasked with their
own unique duties, but with responsibilities over the
other branches as a check in order to ensure that no
branch overstepped their powers, upsetting the balance
of the fledgling constitutional republic. See
Kilbourn v. Thompson, 103 U.S. 168, 191 (1880). These
concepts of “checks and balances” and “separation of
powers” have been the lifeblood of our government,
hallmarks of fairness, cooperation, and representation
that made the orderly operation of a society made up
of a culturally, racially, and socioeconomically
diverse people possible.
New York v. Trump, 769 F. Supp. 3d 119, 127–28 (D.R.I. 2025).
[80]Page 81 of Cal., 591 U.S. 1, 16 (2020) (quoting Franklin v.
Massachusetts, 505 U.S. 788, 796 (1992)).12
Broadly, the APA
establishes a rebuttable “presumption of judicial review [for]
one ‘suffering legal wrong because of agency action.’”
Id.
(alteration in original) (quoting Abbott Lab’ys v. Gardner, 387
U.S. 136, 140 (1967)).
12
The rebuttal of this presumption is made
Section 706 provides in pertinent part:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The
reviewing court shall—
(1)
compel agency action unlawfully withheld or
unreasonably delayed; and
(2)
hold unlawful and set aside agency action, findings,
and conclusions found to be—
(A)
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B)
contrary to constitutional right, power,
privilege, or immunity;
(C)
in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right;
. . . .
In making the foregoing determinations, the court
shall review the whole record or those parts of it
cited by a party, and due account shall be taken of
the rule of prejudicial error.
5 U.S.C. § 706.
[81]Page 82 “by a showing that the relevant statute ‘preclude[s]’ review, §
701(a)(1), or that the ‘agency action is committed to agency
discretion by law,’ § 701(a)(2).”13
Id. at 17.
The first
exception is self-explanatory, and the Supreme Court has read
the second exception “quite narrowly,” applying “it to those
rare ‘administrative decision[s] traditionally left to agency
discretion.’”
Id. (alteration in original) (first quoting
Weyerhaeuser Co. v. United Staes Fish & Wildlife Serv., 586 U.S.
9, 23 (2018); and then quoting Lincoln v. Vigil, 508 U.S. 182,
191 (1993));
Department of Com. v. New York, 588 U.S. 752, 772
(2019) (“[W]e have read the § 701(a)(2) exception for action
committed to agency discretion ‘quite narrowly, restricting it
to “those rare circumstances where the relevant statute is drawn
so that a court would have no meaningful standard against which
to judge the agency's exercise of discretion.”’” (quoting
Weyerhaeuser Co., 586 U.S. at 23)).
Examples of decisions
traditionally left to agency discretion include “a decision not
to institute enforcement proceedings, or a decision by an
13
Section 701 provides in pertinent part:
(a) This chapter applies, according to the provisions
thereof, except to the extent that-(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by
law.
5 U.S.C. § 701(a).
[82]Page 83 intelligence agency to terminate an employee in the interest of
national security.”
New York, 588 U.S. at 772 (citations
omitted).
C.
The 706(2)(A) Claims –- Arbitrary and Capricious
(‘10787 Action Count I, ‘10814 Action Count III)
Section 706(2)(A) of the APA “instructs reviewing courts to
set aside agency action that is ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.’”
at 771 (quoting 5 U.S.C. § 706(2)(A)).
Id.
“An agency action
qualifies as ‘arbitrary’ or ‘capricious’ if it is not
‘reasonable and reasonably explained.’”
Ohio v. Environmental
Prot. Agency, 603 U.S. 279, 292 (2024) (quoting Federal Commc’ns
Comm’n v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)).
Review by the Court under the arbitrary or capricious
standard of Section 706(2)(A) is narrow, because all that is
“required [is for] agencies to engage in ‘reasoned
decisionmaking.’”
Regents of the Univ. of Cal., 591 U.S. at 16
(quoting Michigan v. Environmental Prot. Agency, 576 U.S. 743,
750 (2015)) (emphasis added).
To be sure, this Court may not
“substitute its judgment for that of the agency,” but rather
“must ensure, among other things, that the agency has offered ‘a
satisfactory explanation for its action[,] including a rational
connection between the facts found and the choice made.’”
Ohio,
603 U.S. at 292 (alteration in original) (first quoting Federal
[83]Page 84 Commc’ns Com. v. Fox Television Stations, Inc., 556 U.S. 502,
513 (2009); and then quoting Motor Vehicle Mfrs. Ass’n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
Said another way, this Court’s review “simply ensures
that the agency has acted within a zone of reasonableness and,
in particular, has reasonably considered the relevant issues and
reasonably explained the decision.”
Prometheus Radio Project,
592 U.S. at 423.
“Generally, an agency decision is arbitrary and capricious
if ‘the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.’ ” Sierra Club v.
United States Dep't of the Interior, 899 F.3d 260, 293 (4th Cir.
2018) (quoting Motor Vehicle Mfrs. Assn. of United States, Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.
2856, 77 L.Ed.2d 443 (1983)).
“Determining whether an agency
action is ‘reasonable and reasonably explained’ is ‘measured by
what [the agency] did, not by what it might have done.’”
Green
& Healthy Home Initiatives, Inc. v. Env't Prot. Agency, No. 25CV-1096-ABA, 2025 WL 1697463, at *20 (D. Md. June 17, 2025) SEC
v. Chenery Corp., 318 U.S. 80, 93-94 (1943).
[84]
“And to this end,Page 85 conclusory statements will not do; an ‘agency's statement must
be one of reasoning.’” Amerijet Int'l, Inc. v. Pistole, 753 F.3d
1343, 1350 (D.C. Cir. 2014)(quoting Butte Cnty., Cal. v. Hogen, 613 F.3d 190, 194 (D.C.Cir.2010).
This Court, is “ordinarily limited to evaluating the
agency's contemporaneous explanation in light of the existing
administrative record.”
New York, 588 U.S. at 780.
In the
usual course, this is because “further judicial inquiry into
‘executive motivation’ represents ‘a substantial intrusion’ into
the workings of another branch of Government and should normally
be avoided.”
Id. at 781 (quoting Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977)).
Indeed, this Court may neither “reject an agency’s stated
reasons for acting simply because the agency might also have had
other unstated reasons” nor “set aside an agency’s policymaking
decision solely because it might have been influenced by
political considerations or prompted by an Administration’s
priorities.”
Id.
This general rule recognizes the reality that
“[a]gency policymaking is not a ‘rarified technocratic process,
unaffected by political considerations or the presence of
Presidential power.’”
Id. (quoting Sierra Club v. Costle, 657
F.2d 298, 408 (D.C. Cir. 1981)).
Agency “decisions are
routinely informed by unstated considerations of politics, the
legislative process, public relations, interest group relations,
[85]Page 86 foreign relations, and national security concerns (among
others).”
Id.
All that being said, while the Court’s “review is
deferential,” it is certainly “‘not required to exhibit a
naiveté from which ordinary citizens are free.’”
Dep't of Com.
v. New York, 588 U.S. 752, 785 (2019) (quoting United States v.
Stanchich, 550 F.2d 1294, 1300 (2nd Cir 1977) (Friendly, J.)).
The Public Officials argue as one of their reasons
“[t]he
change in democratically accountable leadership with different
priorities is not a post hoc rationalization; it is historical
fact” and that “[w]ith a new administration comes an appropriate
opportunity to assess and reassess the agency’s activities.”
10787 Action, Defs. Resp. Trial Br. 4, ECF
No. 111.
True
enough, but what the Public Officials fail to appreciate is that
they have to work within the confines of the law.
That is, a
new administration certainly is entitled to make changes -– even
unpopular or unwise changes.
What it cannot do is undertake
actions that are not reasonable and not reasonably explained.
This is where the Public Officials miss the mark.
Even under
this narrow scope of review, the Public Officials’ actions as
evidence under the Challenged Directives are breathtakingly
arbitrary and capricious.
A careful review of the Administrative Record confirms to
this Court what Justice Jackson wondered aloud three months ago
[86]Page 87 (albeit from a different agency allegedly doing similar things):
that there is no reasoned decision-making at all with respect to
the NIH’s “abruptness” in the “robotic rollout” of this granttermination action.
Department of Education v. California, 145
S.Ct. 966, 975-76 (Jackson, J. dissenting); see also Thakur v.
Trump, No. 25-CV-04737-RFL, 2025 WL 1734471, at *14 (N.D. Cal.
June 23, 2025) (“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.”).
The Court “cannot ignore the disconnect between the
decision made and the explanation given.”
785.
New York, 588 U.S. at
Based upon a fair preponderance of the evidence and on the
sparse administrative record, the Court finds and rules that HHS
and, in turn NIH, are being force-fed unworkable “policy”
supported with sparse pseudo-reasoning, and wholly unsupported
statements.
Starting with DEI, the record is completely devoid of a
definition.
This Court has been transparent on this issue, see
American Pub. Health Assn. v. Natl. Institutes of Health, No. CV
25-10787-WGY, 2025 WL 1548611, at *12 (D. Mass. May 30, 2025),
[87]Page 88 yet at trial the Public Officials can point only to the
identification of DEI, but not the definition of DEI:
R. 3226; Tr. 58-59, ECF No. 156 (citing R. 3226).
autological concept.
It is not an
The Court questioned the Public Officials’
counsel in closing arguments: “So that’s as close to a
definition [of DEI] as we’ve got?”, to which the Public
Officials’ counsel responded: “That is the agency’s reasoning.”
Id.
The Public Officials’ counsel’s response while
unsatisfactory in the sense that one would assume that DEI would
be defined somewhere, was accurate and responsive.14
The Public
Officials simply have no definition of DEI.
How, then, can the Public Officials act on “DEI” if there
is no operative definition of “DEI”?
The answer is plain: they
cannot, at least within the confines of the APA.
See Firearms
Regul. Accountability Coal., Inc. v. Garland, 112 F.4th 507, 523
The Court observes the Public Officials’ counsel have
been consistent and responsive to this Court on this issue.
Id.; see also, May 22, 2025 Hrg Tr. 19-20, ECF No. 82;
14
[88]Page 89 (8th Cir. 2024) (rejecting as arbitrary and capricious an agency
standard that relies on circular reasoning because it “allow[ed]
the ATF to reach any decision is wish[ed] only looking to
specific evidence of community misuse [of a weapon] while
ignoring any other examples of the community’s compliant use”).
Reliance on an undefined term of DEI (or any other category) “is
arbitrary and capricious because it allows the [Public
Officials] to arrive at whatever conclusion it wishes without
adequately explaining the standard on which its decision is
based.”
Id. at 525 (cleaned up).
Unfortunately, the Public
Officials did just that.
The Court need not delve deeply into the rudderless EOs
concerning DEI: they do not even attempt to define DEI, but
instead set it up as some sort of boogeyman.
This lack of
clarity was (and is), in the first instance, wholly unfair to
the career-HHS and NIH personnel, which must attempt to “align”
themselves with the Executive through direction by partisan
appointed public officials.
Without a definition of DEI, they
embarked on a fool’s errand resulting in arbitrary and
capricious action.
Then-Acting Secretary of Health and Human Services Dr.
Dorothy Fink, picked up the mantle first in the Secretarial
Directive, equating without any stated-basis still-undefined DEI
with “initiatives that discriminate on the basis of race, color,
[89]Page 90 religion, sex, national origin, or another protected
characteristic.”
R. 5 (emphasis added).
Further, she claims
that “[c]ontracts and grants that support DEI and similar
discriminatory programs can violate Federal civil rights law and
are inconsistent with the Department's policy of improving the
health and well-being of all Americans.”
What wordsmithing!
Id. (emphasis added)
Of course discriminatory programs, or
initiatives that discriminate, can violate federal laws, but
there is absolutely nothing in the record that demonstrates this
is a reasonable statement in the context of DEI -- again
undefined -- nor are her statements reasonably explained at all.
The statement, respectfully, is utterly meaningless.
On February 13, 2025, the then-NIH Deputy Director of
Extramural Research, Dr. Lauer, who provided supposed guidance
with respect to still-undefined DEI, using the language of HHS,
lumped in “DEI” with “initiatives that discriminate on the basis
of race, color, religion, sex, national origin, or another
protected characteristic” and advised that if the “sole purpose”
of the grants etc. “supports DEI activities” – again undefined –
- “then the award must be fully restricted.” R. 16.
Again, this
memorandum and the lack of a definition of DEI or what
supporting DEI activities reveals a reluctance to engage.
Indeed, though not determinative, Dr. Lauer resigned from a long
career in government service the same day he penned the February
[90]Page 91 Notably, his
successor, Ms. Bundesen lasted only 3 weeks after which she too
resigned from government service as well.
While the Court makes
no finding as to Dr. Lauer’s or Ms. Bundesen’s motivations or
reasons for resigning, it is not lost on the Court that
oftentimes people vote with their feet.15
Next, on February 21, 202k, Dr. Fink’s appointee, Acting
Director Matthew Memoli took the reins.
This time, there is
evidence that HHS provided him with some circular and
nonsensical boilerplate language that was used almost verbatim
later on in the grant termination letters.
That aside, Dr.
Memoli tripled down on the DEI mystery, and added -- in a truly
hold-my-beer-and-watch-this moment -- “gender identity” to the
mix.
The similar nonsensical phrasing appears.
Like his boss at HHS, and whoever drafted the Executive
Orders for that matter, Dr. Memoli can certainly identify
“diversity, equity and inclusion (DEI),” but is unable (or
unwilling) to define it.
Instead, he follows Dr. Fink’s lead,
relegating it to a category “low-value and off-mission research
The lack of any demonstrable pushback on these
nonsensical Challenged Directives in the Administrative Record
belies the tremendous bureaucratic pressure at play here. It is
palpable. While HHS and the NIH bureaucrats are scientists at
heart, they are trying to keep their jobs. Scientists cling to
reason, not whim –- merit, not loyalty.
15
[91]Page 92 programs”, including not only DEI, but also undefined gender
identity.
Dr. Memoli then goes back in time, attempting to state that
even though his “description of NIH's mission is consistent with
recent Executive Orders issued by the President,” his directive
is “based on my expertise and experience; consistent with NIH's
own obligation to pursue effective, fiscally prudent research;
and pursuant to NIH authorities that exist independently of, and
precede, those Executive Orders.”
See Memoli Directive.
While
intriguing, the regurgitation of the HHS language belies this
separation.
DEI.
Indeed, his description obscures any definition of
The first sentence is untethered to DEI, and is true in
the abstract:
“Research programs based primarily on artificial and nonscientific categories, including amorphous equity objectives,
are antithetical to the scientific inquiry, do nothing to expand
our knowledge of living systems, provide low returns on
investment, and ultimately do not enhance health, lengthen life,
or reduce illness.”
Id.
Simply put, non-scientific research is
non-scientific research, and should not be an NIH priority.
Then Dr. Memoli goes on, “Worse, DEI studies are often used
to support unlawful discrimination on the basis of race and
other protected characteristics, which harms the health of
Americans.”
Id.
[92]Page 93 Apparently, by using the transition
“worse,” the term “DEI studies” –- again DEI is undefined -– are
somehow inherently “artificial and non-scientific.”
Without
citing a single example, Dr. Memoli claims that DEI studies are
“often used in support of unlawful discrimination on the basis
of race and other protected characteristics,” which he connects
with harm to the health of Americans.
So, is it the DEI studies
that are the problem or how others use them?
Who knows.
There
is not a shred of evidence supporting any of these statements in
the record.
Dr. Memoli then transitions to “gender identity”, the next
boogeyman: “Likewise, research programs based on gender identity
are often unscientific, have little identifiable return on
investment, and do nothing to enhance the health of many
Americans.
Many such studies ignore, rather than seriously
examine, biological realities.”
R. 3821 (emphasis added).
There is not a shred of evidence in the Administrative Record
backing this up either.
Phrases like “often unscientific” and
“many studies ignore” are unsupported with anything other than
(apparently) Dr. Memoli’s experience.
Ironically, these kinds
of phrases would never survive peer review.
HHS’s and the NIH’s implementation of the EOs is based
literally upon nothing but an undefined term.
Without defining
it, DEI becomes whatever DEI means to the Public Officials
[93]Page 94 Case 1:25-cv-10814-WGY
Document 163
untethered to anything.
Page 94 of 103
This is not reasoned decision-making,
in fact it is just the opposite.
reasonably explained.
Filed 07/02/25
It is neither reasonable, nor
Indeed, “the fact that an agency's
actions were undertaken to fulfill a presidential directive does
not exempt them from arbitrary-and-capricious review.”
Kingdom
v. Trump, No. 1:25-CV-691-RCL, 2025 WL 1568238, at *10 (D.D.C.
June 3, 2025).
The HHS and, in turn the NIH’s, best possible
(but losing) argument is on this record that they were simply
following orders of the Administration (or DOGE), but this is an
argument that simply falls flat.
Id. (“[I]f an agency could
avoid the need to justify its decisions simply by gesturing to
an Executive Order and claiming that it was just following the
President's directions, the President could unilaterally
eviscerate the judicial oversight that Congress contemplated in
passing the APA simply by issuing a carbon-copy executive order
mandating that an agency act in a particular way before it does
so.”).
That is essentially what has been done here.
This is
evidenced by the lack of any reasoned decisionmaking at all in
the Administrative Record.
The Public Officials have decided
that they are going to “eradicate” something that they cannot
define.
That agency action is arbitrary and capricious.
Pivoting to gender affirming care, vaccine hesitancy, COVID,
Climate Change and Influencing Public Opinion, these terms
evolve in the Priorities Directive, evidence that the NIH was
[94]Page 95 trying to figure it out, all the while being tasked with using
those same terms to wipe out grants.
reasonable explanation in the record.
None of these terms have a
The Public Officials
“must show that there are good reasons for the new policy. . . .
that the new policy is permissible under the statute, that there
are good reasons for it, and that the agency believes it to be
better.” F.C.C. v. Fox Television Studios, 556 U.S. 502, 515
(2009).
In plain terms, “this means that the agency need not
always provide a more detailed justification than what would
suffice for a new policy created on a blank slate.” Id.
It must
do more when, as here, “for example, its new policy rests upon
factual findings that contradict those which underlay its prior
policy; or when its prior policy has engendered serious reliance
interests that must be taken into account.”
Id.
The HHS and
NIH have not done so here, and with the exception of a scintilla
of evidence with respect to potential disruptions of withdrawn
NOFOs, there is no evidence that they even considered the
reliance interests that naturally inure to NIH grant process.
It is “arbitrary or capricious to ignore such matters.” Id.
The
Public Officials “fail[ ] to provide an intelligible
explanation,” which “amount[ ] to a failure to engage in
reasoned decisionmaking ...” Constellation Mystic Power, LLC v.
FERC, 45 F.4th 1028, 1057 (D.C. Cir. 2022) (quoting FPL Energy
Marcus Hook, L.P. v. FERC, 430 F.3d 441, 448 (D.C. Cir. 2005);
[95]Page 96 see Thakur, 2025 WL 1734471, at *15 (“The terminated grants were
being used to pay Plaintiffs’ and their staff's salaries, and to
fund graduate student programs, field research, and community
outreach.
These facts indicate significant reliance interests
that cannot simply be ignored.”).
As the Court has already ruled, the Court -- relying on the
Certified Administrative Record -- rules that on a fair
preponderance of the evidence that the Challenged Directives are
arbitrary and capricious under Section 706(2)(A), as are the
concomitant grant terminations, which action are all set aside
and vacated.
D.
Section 706(2)(A) Claims -- Not in Accordance
with Law (‘10787 Action Count II; ‘10814 Action
Count II)
The APA claim that agency action is “not in accordance with
law” is a subpart of Section 706(2)(A).
In reviewing this claim
“a reviewing court must uphold an agency's decision if it is:
(1) devoid of legal errors; and (2) “supported by any rational
review of the record.”
New York v. Trump, No. 25-CV-39-JJM-PAS, 2025 WL 715621, at *9 (D.R.I. Mar. 6, 2025) (quoting Mahoney v.
Del Toro, 99 F.4th 25, 34 (1st Cir. 2024)).
The Plaintiffs attack the Public officials claim that 2
C.F.R. § 200.340(a)(4) operates as a trump card and permits
termination of and award that “no longer effectuates the
programs goals or agencies priorities.”
[96]
Id.Page 97 Section 340 is part of OMB’s guidance, and that is all that
is –- nonbinding guidance.
See 2 C.F.R. §1.105(b) (“Publication
of the OMB guidance in the CFR does not change its nature—it is
guidance, not regulation.”).
That provision falls under the
section entitled “Remedies for Noncompliance.”
provides “remedies for noncompliance.”
Section 200.339
2 C.F.R. §
That provision provides in pertinent part:
(a)
The Federal award may be terminated in part
or its entirety as follows:
(1)
By the Federal agency or pass-through entity
if the recipient or subrecipient fails to
comply with the terms and conditions of the
Federal award;
(2)
By the Federal agency or pass-through entity
with the consent of the recipient or
subrecipient, in which case the two parties
must agree upon the termination conditions.
These conditions include the effective date
and, in the case of partial termination, the
portion to be terminated;
(3)
By the recipient or subrecipient upon
sending the Federal agency or pass-through
entity a written notification of the reasons
for such termination, the effective date,
and, in the case of partial termination, the
portion to be terminated. However, if the
Federal agency or pass-through entity
determines that the remaining portion of the
Federal award will not accomplish the
purposes for which the Federal award was
made, the Federal agency or pass-through
entity may terminate the Federal award in
its entirety; or
(4)
By the Federal agency or pass-through entity
pursuant to the terms and conditions of the
Federal award, including, to the extent
[97]Page 98 authorized by law, if an award no longer
effectuates the program goals or agency
priorities.
2 C.F.R. § 200.340(a).
That provision requires that an agency
“must clearly and unambiguously specify all termination
provisions in the terms and conditions of the Federal award.”
Id. at § 200.340(b).
An agency terminating an award “must
provide written notice of termination to the recipient or
subrecipient . . . [which] should include the reasons for
termination, the effective date, and the portion of the Federal
award to be terminated, if applicable.
2 C.F.R. § 200.341
Section 200.340 is an OMB Regulation that provides only guidance
to all agencies, and is not binding.
See 2 C.F.R. §1.105(b)
(“Publication of the OMB guidance in the CFR does not change its
nature -- it is guidance, not regulation.”)
As an initial matter, HHS’s adoption of the regulation is
not effective until October 2025; accordingly, the regulation is
wholly inapplicable here.
See Health and Human Services
Adoption of the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards, 89 FR
80055-01 (“HHS will adopt all of the rest of 2 CFR part 200 with
an effective date of October 1, 2025.”).
Instead, a different
statue, 45 C.F.R. § 75.372(a) (2024) allows for unilateral
termination only where there is a failure “to comply with the
terms and conditions of the award” or “for cause.” 45 C.F.R. §
[98]Page 99 Plaintiffs argue that “the plain language
of the regulation mandates that these are the exclusive
conditions under which HHS and its sub-agencies may terminate a
grant.”
ECF 103 28 (citing Pol’y & Rsch., LLC v. United States
Dep't of Health & Human Servs., 313 F. Supp. 3d 62, 76 (D.D.C.
2018); Healthy Teen Network v. Azar, 322 F. Supp. 3d 647, 651
(D. Md. 2018).
That in and of itself demonstrates legal error.
Simply put, the Public Officials cannot rely on a regulation
that does not yet apply to their respective agencies in their
template.
But even if it applied, under the cited regulation, an
agency can terminate an award “pursuant to the terms and
conditions of the Federal award, including, to the extent
authorized by law, if an award no longer effectuates the program
goals or agency priorities.” 2 C.F.R. § 200.340 (emphasis
added).
This is a distinction with a difference, because ““this
regulation cannot authorize actions that contravene statutory
requirements, nor does it relieve [the Public Officials] of
[their] duty to follow the law.” Pacito v. Trump, No. 2:25-CV255-JNW, ––– F.Supp. 3d ––––, ––––, 2025 WL 893530, at *9 (W.D.
Wash. Mar. 24, 2025) (quoting 2 C.F.R. § 200.340(a)(4)).
The Public Officials counter that the regulation has been
incorporated into the terms and conditions of the grantees’
awards.
Even if the regulation applied as a contractual term,
[99]Page 100 whether the “award no longer effectuates the programs goals or
agency priorities” can still be challenged under the APA where
the underlying reasons violate the APA.
See Thakur v. Trump,
No. 25-CV-04737-RFL, 2025 WL 1734471, at *14 (N.D. Cal. June 23,
2025) (“2 C.F.R. § 200.340, to the extent it applies, does not
alter the requirement under the APA that Defendants must provide
a reasoned decision for their termination.”); American Ass'n of
Colls. for Tchr. Educ. v. McMahon, 770 F. Supp. 3d 822, 851 (D.
Md. 2025 (ruling that even if termination letters invoked a
valid reason to terminate under 2 C.F.R. § 200.340, APA claims
survived because the letters “fail[ed] to provide [the
plaintiffs] any workable, sensible, or meaningful reason or
basis for the termination of their awards”).
Reliance on these
inapplicable regulation as basis for template letter
terminations in conjunction with meaningless descriptions is
contrary to law under Section 706(2)(A) of the APA.
E.
Section 706(2)(C) Claims -- In excess of
Statutory Authority (‘10787 Action Count III;
‘10814 Action Count I)
An APA action brought under Section 706(2)(C), challenges
agency action “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.”
Id.
The
“[C]ourt[] must exercise [its] independent judgment in deciding
whether an agency has acted within its statutory authority.”
Loper Bright, 603 U.S. at 412.
“[T]he [C]ourt fulfills [its]
[100]
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Case 1:25-cv-10814-WGY
Document 163
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UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
AMERICAN PUBLIC HEALTH ASSOCIATION;)
IBIS REPRODUCTIVE HEALTH;
)
INTERNATIONAL UNION, UNITED
)
AUTOMOBILE, AEROSPACE, AND
)
AGRICULTURAL IMPLEMENT
)
WORKERS (UAW); BRITTANY CHARLTON; )
KATIE EDWARDS; PETER LURIE; and
)
NICOLE MAPHIS,
)
)
Plaintiffs,
)
v.
)
)
NATIONAL INSTITUTES OF HEALTH;
)
JAY BHATTACHARYA, in his official )
capacity as Director of the
)
National Institutes of Health;
)
UNITED STATES DEPARTMENT OF HEALTH )
AND HUMAN SERVICES; and ROBERT F. )
KENNEDY, JR., in his official
)
capacity as Secretary of the
)
United States Department of Health )
and Human Services,
)
)
Defendants.
)
___________________________________)
___________________________________
COMMONWEALTH OF MASSACHUSETTS;
STATE OF CALIFORNIA; STATE OF
MARYLAND; STATE OF WASHINGTON;
STATE OF ARIZONA; STATE OF
COLORADO; STATE OF DELAWARE;
STATE OF HAWAIʻI; STATE OF
MINNESOTA; STATE OF NEVADA;
STATE OF NEW JERSEY; STATE OF
NEW MEXICO; STATE OF NEW YORK;
STATE OF OREGON; STATE OF RHODE
ISLAND; and STATE OF WISCONSIN,
)
)
)
)
)
)
)
)
)
)
)
)
)
[1]
CIVIL ACTION NO.
25-10787-WGY
PDF Page 3
Case 1:25-cv-10814-WGY
Document 163
)
)
Plaintiffs,
)
v.
)
)
ROBERT F. KENNEDY, JR., in his
)
official capacity as Secretary of )
Health and Human Services;
)
UNITED STATES DEPARTMENT OF
)
HEALTH AND HUMAN SERVICES;
)
JAYANTA BHATTACHARYA, in his
)
official capacity as Director of
)
the National Institutes of Health; )
NATIONAL INSTITUTES OF HEALTH;
)
NATIONAL CANCER INSTITUTE;
)
NATIONAL EYE INSTITUTE;
)
NATIONAL HEART, LUNG, AND BLOOD
)
INSTITUTE; NATIONAL HUMAN GENOME
)
RESEARCH INSTITUTE; NATIONAL
)
INSTITUTE ON AGING; NATIONAL
)
INSTITUTE ON ALCOHOL ABUSE AND
)
ALCOHOLISM; NATIONAL INSTITUTE
)
OF ALLERGY AND INFECTIOUS
)
DISEASES; NATIONAL INSTITUTE OF
)
ARTHRITIS AND MUSCULOSKELETAL AND )
SKIN DISEASES; NATIONAL
)
INSTITUTE OF BIOMEDICAL IMAGING
)
AND BIOENGINEERING; EUNICE KENNEDY )
SHRIVER NATIONAL INSTITUTE OF
)
CHILD HEALTH AND HUMAN
)
DEVELOPMENT; NATIONAL INSTITUTE
)
ON DEAFNESS AND OTHER
)
COMMUNICATION DISORDERS;
)
NATIONAL INSTITUTE OF DENTAL
)
AND CRANIOFACIAL RESEARCH;
)
NATIONAL INSTITUTE OF DIABETES
)
AND DIGESTIVE AND KIDNEY
)
DISEASES; NATIONAL INSTITUTE
)
ON DRUG ABUSE; NATIONAL
)
INSTITUTE OF ENVIRONMENTAL
)
HEALTH SCIENCES; NATIONAL
)
INSTITUTE OF GENERAL MEDICAL
)
SCIENCES; NATIONAL INSTITUTE OF
)
MENTAL HEALTH; NATIONAL INSTITUTE )
ON MINORITY HEALTH AND HEALTH
)
DISPARITIES; NATIONAL INSTITUTE
)
OF NEUROLOGICAL DISORDERS AND
)
[2]
Filed 07/02/25
Page 2 of 103
CIVIL ACTION NO.
25-10814-WGY
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STROKE; NATIONAL INSTITUTE OF
NURSING RESEARCH; NATIONAL LIBRARY
OF MEDICINE; NATIONAL CENTER FOR
ADVANCING TRANSLATIONAL SCIENCES;
JOHN E. FOGARTY INTERNATIONAL
CENTER FOR ADVANCED STUDY
IN THE HEALTH SCIENCES; NATIONAL
CENTER FOR COMPLEMENTARY AND
INTEGRATIVE HEALTH; and CENTER
FOR SCIENTIFIC REVIEW,
)
)
)
)
)
)
)
)
)
)
)
Defendants.
)
___________________________________)
YOUNG, D.J.
July 2, 2025
FINDINGS OF FACT, RULINGS OF LAW, AND
ORDER FOR PARTIAL SEPARATE AND FINAL JUDGMENT
I.
INTRODUCTION
These consolidated actions are two of many in this
district, and across the Nation, claiming that current Executive
Branch policies, mostly through Executive Orders, have been
implemented by various agencies in violation of the
Administrative Procedure Act, statutory law, and the
Constitution.
Based upon the evidence presented at the hearing
on the APA claims and bench trial of the remainder, this Court
concludes what has been occurring at the Department of Health
and Human Services (“HHS”) and the National Institutes of Health
(“NIH”) with respect to its disruption of grants, the grant
making process and the pipeline of future scientists by
[3]
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forbidding by fiat certain topics, is on this Administrative
Record, illegal under the Administrative Procedure Act (“APA”).
After this Court collapsed the separate motions for
preliminary injunctions into a single consolidated trial
pursuant to Rule 65(a), and after hearing on the Administrative
Procedure Act claims and a bench trial on the Constitutional
claims (Phase One), in both actions save -- for the APA delay
claims (Phase Two), the Court provides its findings of fact and
rulings of law pursuant to Rule 52(a) of the Federal Rules of
Civil Procedure as to Phase One.
II.
PROCEDURAL HISTORY
In American Public Health Association et al. v. the
National Institutes of Health et al., Civ No. 25-10787 (“the
‘10787 Action”), the American Public Health Association
(“APHA”), Ibis Reproductive Health, the International Union,
United Automobile, Aerospace, and Agricultural Implement
Workers, Dr. Brittany Charlton, Dr. Katie Edwards, Dr. Peter
Lurie, and Dr. Nicole Maphis (collectively, “the APHA
Plaintiffs”) seek declaratory and injunctive relief against the
National Institutes of Health (“the NIH”), NIH Director Jay
Bhattacharya in his official capacity, and Secretary of Health
and Human Services Robert F. Kennedy, Jr. in his official
capacity.
[4]
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Similarly, in Commonwealth of Massachusetts et al. v.
Kennedy et. al., Civ No. 25-10814 (“the ‘10814 Action”), the
Commonwealth of Massachusetts along with 15 other States1
(referred to collectively as “the State Plaintiffs”), sue
Secretary Kennedy, the Director Bhattacharya, and the federal
institutes and centers2 (in both actions the defendants are
referred here collectively as “the Public Officials” and the
APHA Plaintiffs and State Plaintiffs referred to collectively as
In addition to the Commonwealth of Massachusetts, the
State of California, the State of Maryland, the State of
Washington, the State of Arizona, the State of Colorado, the
State of Delaware, the State of Hawaiʻi, the State of Minnesota,
the State of Nevada, the State of New Jersey; the State of New
Mexico; the State of New York, the State of Oregon, the State of
Rhode Island; and the State of Wisconsin join as plaintiffs.
2
Those ICs are: the National Cancer Institute, the
National Eye Institute, the National Heart, Lung, and Blood
Institute, the National Human Genome Research Institute, the
National Institute on Aging, the National Institute on Alcohol
Abuse and Alcoholism, the National Institute of Allergy and
Infectious Diseases, the National Institute of Arthritis and
Musculoskeletal and Skin Diseases, the National Institute of
Biomedical Imaging and Bioengineering, the Eunice Kennedy
Shriver National Institute of Child Health and Human
Development, the National Institute on Deafness and Other
Communication Disorders, the National Institute of Dental and
Craniofacial Research, the National Institute of Diabetes and
Digestive and Kidney Diseases, the National Institute on Drug
Abuse; the National Institute of Environmental Health Sciences,
the National Institute of General Medical Sciences, the National
Institute of Mental Health, the National Institute on Minority
Health and Health Disparities, the National Institute of
Neurological Disorders and Stroke, the National Institute of
Nursing Research, the National Library of Medicine, the National
Center for Advancing Translational Sciences, the John E. Fogarty
International Center for Advanced Study in the Health Sciences,
the National Center for Complementary and Integrative Health,
and the Center for Scientific Review.
1
[5]
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“the Plaintiffs”).
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Both actions arise from the NIH’s newly-
minted war against undefined concepts of diversity, equity and
inclusion and gender identity, that has expanded to include
vaccine hesitancy, COVID, influencing public opinion and climate
change.
The actions were randomly reassigned to this Court on May
1, 2025.
Elec. Notice Reassignment, ECF No. 99.
The Court
collapsed the motions into a trial on the merits pursuant to
Rule 65(a) of the Federal Rules of Civil Procedure.3
The Court
has ruled on jurisdictional issues and a broader motion to
dismiss. See Mem. & Order, ‘10787 Action, ECF No. 84; Mem. &
Order, ‘10817 Action, ECF No. 105.
The trial was divided into two phases largely based on the
APA claims, but each phase including other claims: Phase One,
APA Section 706(2) (primarily arbitrary and capricious claims)
and concomitant statutory and constitutional claims), and Phase
Two, Section 706(1) (primarily the delay claims).
The Court held a full hearing and bench trial as to Phase
One.
At the conclusion of the trial of Phase One, the Court
The Court acknowledges that its usual process is
expeditious, it observes that while this matter has proceeded to
trial, injunctive relief has recently issued as to other actions
relating to HHS’s and the NIH’s actions. See New York v.
Kennedy, No. 25-CV-196-MRD-PAS, 2025 WL 1803260, at *13 (D.R.I.
July 1, 2025); Massachusetts v. Nat'l Institutes of Health, 770
F. Supp. 3d 277 (D. Mass. 2025) (Kelley, J.), judgment entered,
No. 1:25-CV-10338, 2025 WL 1063760 (D. Mass. Apr. 4, 2025).
3
[6]
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ruled from the bench that the Challenged Directives taken as a
whole, were arbitrary and capricious final agency action, as
well as were the terminations of the grants in accordance
therewith; the Court took the rest of the matter under
advisement.
The Court now provides its complete findings of
fact and rulings of law as to so much of Phase One as pertains
to the APA claims raised therein and addressed from the bench4 as
Time is of the essence in this equity case. For that
reason, the Court entered a partial judgment under Fed. R. Civ.
P. 54(b) to allow for a prompt appeal of a “clean” decision on
the APA claims. Partial Final Judgment, ‘10787 Action, ECF No.
138; Partial Judgment, ‘10814 Action, ECF No. 151. Quite
properly, the Public Officials have promptly appealed. Notice
of Appeal, ‘10787 Action, ECF No. 139; Notice of Appeal ‘10814
Action, ECF No. 152. The Public Officials sought a stay pending
the appeal, which this Court denied. See Order, ‘10787 Action,
ECF No. 147; Order, ‘10814 Action, ECF No. 160.
4
On the ground, while the HHS continues to repeat its nowfamiliar dirge of empty triumphalism, see
https://www.reuters.com/business/healthcarepharmaceuticals/federal-judge-says-trump-cuts-nih-grants-areillegal-politico-reports-2025-06-16/, the NIH appears to be
working in good faith to reassemble its grant-making machinery.
See e.g., https://www.nytimes.com/2025/06/25/science/nih-grantterminations-halted.html;
https://www.science.org/content/article/nih-will-reinstate-900grants-response-court-order;
https://www.masslive.com/news/2025/06/20-nih-grants-restored-toumass-system-after-judge-rules-against-trump-admin.html
More is required to be done on Phase One. In addition to
ruling on Constitutional law questions, the Court must address:
Racial Discrimination – Constitutionally Prohibited
The Court has found as fact that there was pervasive racial
discrimination in selecting grants for termination. It needs to
[7]
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fashion a permanent injunction to prevent any continuation of
this practice.
Gender Discrimination – Statutorily Prohibited
Speaking from the bench following closing arguments, the
Court had not sufficient time to analyze and reflect on the
administrative record such that it could make a finding of
gender discrimination. Now it has.
The Court finds by a fair preponderance of the evidence
that the grant terminations here at issue demonstrate an
unmistakable pattern of discrimination against women’s health
issues. The Court thus needs to afford the parties a chance to
present evidence of the harm resulting from such terminations
and, in the absence of such evidence, whether this is one of
those cases “likely of repetition but evading review.”
LGBTQ+ Discrimination – No Federal Remedy
This Court’s factual finding that there has been extensive
discrimination against everyone whose lived experience of their
sexuality is in any way different from the executive orthodoxy
expressed in the President’s fiat, see Exec. Order 14168, 90
Fed. Reg. 8615 (Jan. 20, 2025), is fully affirmed. What changed
in the days following this Court’s finding is the Supreme
Court’s teaching concerning these matters. I had thought the
factual finding warranted a more complete equal protection
analysis. The decision in United States v. Skrmetti, 145 S. Ct.
1816, 1832 (2025) quite clearly forecloses such analysis.
Justice Barrett’s concern about imprecision in language
addressing these matters, and the skepticism of Justices Thomas
and Alito about the role of science, Id. at 1851 (Barrett, J.,
concurring); 1852 (Thomas, J., concurring), 1867 (Alito, J.,
concurring) leads this Court to conclude that, while here there
is federal government discrimination based on a person’s status,
not all discrimination is pejorative. After all, setting the
voting age, excluding felons from the franchise, and regulating
a young person’s access to obscene material, see Free Speech
Coal., Inc. v. Paxton, No. 23-1122, 2025 WL 1773625, at *9 (U.S.
June 27, 2025); Simmons v. Galvin, 575 F.3d 24, 42 (1st Cir.
2009), all “discriminate” based upon an individual’s status.
They all fall within the state’s police powers. This Court is
thus not warranted in considering injunctive relief as to an
officer of the United States on this ground (despite the fact
that these grant determinations were here arbitrary and
[8]
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required under Rule 52(a) of the Federal Rules of Civil
Procedure.
III. FINDINGS OF FACT
A.
The National Institutes of Health –- The World
Standard of Research
The HHS is an Executive Agency of the United States.
generally, 42 U.S.C. § 3501a et seq.
See
The National Institutes of
Health is an agency of the HHS, and is comprised of 27 separate
institutes and centers (“ICs”) that focus on certain diseases or
human body systems.
The NIH is run by its Director.
Under the Director, there
are five deputy directors: (1) Principal Deputy Director; (2)
Deputy Director for Intramural Research; (3) Deputy Director of
Extramural Research; (4) Deputy Director for Management; and (5)
Deputy Director for Program Coordination, Planning, and
Strategic Initiatives.
See https://www.nih.gov/about-
nih/organization/nih-leadership.
Congress, through the Public Health Service Act (“the
PHSA”), 42 U.S.C. § 201 et seq., mandates that the Secretary of
HHS promote research “relating to the causes, diagnosis,
capricious under the APA) because, at least as to puberty
blockers, what is a denial of equal protection of the laws in
some states is sound public policy in Tennessee.
This Court regrets serving up matters for appeal on a
piecemeal basis but the exigencies of an equitable action and
unfolding reality require it.
[9]
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treatment, control, and prevention of physical and mental
diseases and impairments,” including by, among other things and
relevant here, offering “grants-in-aid to universities,
hospitals, laboratories, and other public or private
institutions, and to individuals.” 42 U.S.C. §241(a)(3).
NIH has similar statutory mandates.
The
42 U.S.C. §§ 282(b),
284(b).
Congress requires the NIH operate predictably and with
stability, not just for its understanding of how the NIH is
fulfilling its duties to the American people, but also to
provide a predictable path for researchers.
Specifically,
Congress by statute requires the NIH to provide a “National
Institutes of Health Strategic Plan” (the “Strategic Plan”)
every six years in order “to provide direction to [the NIH’s]
biomedical research investments.” Id. §282(m)(1).
The Strategic Plan’s purpose is manifold: providing
direction to NIH’s research investment, increasing efficiencies
across the ICs, leveraging scientific opportunity, and advancing
biomedicine.
5
Id.
5
Section 282(m)(1) provides:
[A]t least every 6 years . . . the Director of the
National Institutes of Health shall develop and submit
to the appropriate committees of Congress and post on
the Internet website of the National Institutes of
Health, a coordinated strategy (to be known as the
“National Institutes of Health Strategic Plan”) to
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The Strategic Plan forms the foundation of the NIH’s work.
Indeed, NIH is mandated to “ensure that scientifically based
strategic planning is implemented in support of research
priorities as determined by the agencies of the National
Institutes of Health, and through the development,
implementation, and updating of” the Strategic Plan.
42 U.S.C.
§ 282(b)(5) (emphasis added).
The Strategic Plan is required to “identify strategic
priorities and objectives in biomedical research” of areas such
as assessment of the “state of biomedical and behavioral
research” and opportunities therein, “priorities and objectives
to advance the treatment, cure and prevention of health
conditions,” “emerging scientific opportunities,”
challenges” and “scientific knowledge gaps.”
282(m)(2)(A).
“health
42 U.S.C. §
The Strategic Plan is also required to identify
“near-.mid-,and long term scientific needs.”
Id.
The Strategic Plan is a statutorily imposed collaboration,
requiring the NIH to consult “with the directors of the national
[(1)] provide direction to the biomedical research
investments made by the National Institutes of Health,
[(2)] to facilitate collaboration across the
institutes and centers, [(3)] to leverage scientific
opportunity, and [(4)] to advance biomedicine.
42 U.S.C. § 282(m) (emphasis added).
[11]
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research institutes and national centers, researchers, patient
advocacy groups, and industry leaders.”
42 U.S.C. § 282(m)(4)
Congress historically has paid close attention to its taxdollar investments in medical, health and behavioral research.
In some cases, it has expressed its research priorities directly
in the PHSA, see e.g. Section 283(p).
For example, Congress has
by statute created ICs dedicated to certain systems, and
minority populations.
The NIH is the primary source of federal funding for
biomedical research in the United States, and is the largest
public funder of biomedical research in the world.
Due to its
operations, NIH has contributed to profound medical
breakthroughs and through its funding trains future generations
of scientists.
It is tax-payer investment in the health and
welfare not just of Americans, but humanity.
Broadly, the NIH
performs research within federal facilities, also called
“intramural” research.
It also supports research through
funding of competitive grants to researchers and institutions
outside the federal system.
This is known as “extramural”
research, and is what is at issue in these consolidated actions.
The NIH’s process to allocate funding from Congress for
extramural research is covered by several statutes and
regulations.
See 42 C.F.R. § 52 et seq.; .
The Court presumes
the parties’ familiarity with the process, but broadly, with
[12]
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respect to extramural research, researchers must apply to the
NIH for funding.
The NIH, in line with its priorities, invites
proposals for grants through what is known as “Notice of Funding
Opportunity” (“NOFO”).
In simple terms, the applications go
through a three-step process: a scientific review group, and if
successful, then to the advisory council.
If the application is
approved by the advisory council, their recommendation proceeds
to the IC’s director who makes the ultimate funding decision.
Grants are, understandably, oftentimes not a one-time
event.
Research takes time, often requiring continuation grants
or multiple grants.
The NIH’s framework of stability and
predictability has proven itself time and again over the past
several decades over multiple administrations.
It is one reason
the United States, through the support of the hard-working
government workers at HHS and the NIH, in partnership with the
scientific research community, has been unsurpassed in its
contributions to breakthroughs in science that have enhanced our
lives.
To be sure, there are priorities, as funding is not
unlimited, and administrations each have differing views on what
those priorities ought be, but the NIH’s priority changes have
been predictable.
What is clear is that Congress intends for
the NIH to operate with Congressional oversight and certainly
some statutory direction, but by and large leaves the science to
the scientists.
Indeed, the American people have enjoyed a
[13]
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historical norm of a largely apolitical scientific research
agency supporting research in an elegant, merit-based approach
that benefits everyone.
That historical norm changed on January 20, 2025.
The new
Administration began weaponizing what should not be weaponized –
- the health of all Americans through its abuse of HHS and the
NIH systems, creating chaos and promoting an unreasonable and
unreasoned agenda of blacklisting certain topics, that on this
Administrative Record, has absolutely nothing to do with the
promotion of science or research.
B.
Timeline of Events
1.
January 20, 2025 – January 21, 2025 -- Executive
Orders 14151, 14168, and 14173 are issued.
The Executive Branch decided early on, through Executive
Orders, to focus on eradicating anything that it labels as
Diversity, Equity and Inclusion (“DEI”), an undefined enemy.
No
one has ever defined it to this Court –- and this Court has
asked multiple times.
Indeed, as will be demonstrated, while
the Executive, HHS, and the NIH certainly identify the acronym
DEI and its component words, it’s definition is purely circular
reasoning: DEI is DEI.
It also is focused on gender identity as
a priority, proclaiming through Executive Orders its concerns.
The Executive Branch, of course, has every right to espouse its
views, and this Court opines on neither their veracity nor
[14]
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wisdom.
Document 163
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Nevertheless, the Executive Orders lay the groundwork
for what occurred at HHS and the NIH.
a.
Executive Order 14151
On January 20, 2025, the President issued Executive Order
No. 14151, entitled "Ending Radical and Wasteful Government DEI
Programs and Preferencing."
Exec. Order 14151, 90 Fed. Reg.
8339 (Jan. 20, 2025) (“EO 14151”).
EO 14151 focuses on ending
what the Executive views as a perceived “infiltration” of the
federal government
of “illegal and immoral discrimination
programs of the Biden Administration going by the name
‘Diversity, Equity and Inclusion’”.
Id.
EO 14151 posits that
DEI is mutually exclusive to “serving every person with equal
dignity and respect.”
Id.
Under the guise of “making America
great,” EO 14151 instructs the Attorney General and others to
"coordinate the termination of all discriminatory programs,
including illegal DEI and 'diversity, equity, inclusion, and
accessibility' (DEIA) mandates, policies, programs, preferences,
and activities in the Federal Government, under whatever name
they appear."
Id.
EO 14151 does not define DEI.
Additionally,
and pertinent here, EO14151 directs each federal agency head to
"terminate, to the maximum extent allowed by law, all 'equityrelated' grants or contracts" within 60 days.
broad, undefined contours.
Id.
This too has
As one Court recently noted, “‘[t]he
vagueness of the term ‘equity-related’ grants or contracts
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invites arbitrary and discriminatory enforcement and does not
provide sufficient notice to grantees as to what types of speech
or activity they must avoid to prevent termination of their
grants or contracts -- compelling grantees and grant applicants
to steer far too clear of the forbidden area of anything related
to the broad and undefined term of equity.’” San Francisco
A.I.D.S. Found. v. Trump, No. 25-CV-01824-JST, 2025 WL 1621636,
at *21 (N.D. Cal. June 9, 2025) (cleaned up).
b.
Executive Order 14168
On January 20, 2025, the President also issued Executive
Order 14168, "Defending Women from Gender Ideology Extremism and
Restoring Biological Truth to the Federal Government."
The
President claims that women need protection from transgender
persons:
Efforts to eradicate the biological reality of sex
fundamentally attack women by depriving them of their
dignity, safety, and well-being. The erasure of sex
in language and policy has a corrosive impact not just
on women but on the validity of the entire American
system. Basing Federal policy on truth is critical to
scientific inquiry, public safety, morale, and trust
in government itself.
Exec. Order 14168, 90 Fed. Reg. 8615 (Jan. 20, 2025) (“EO
14168”).
The EO goes on to proclaim that "gender ideology"
somehow "replaces the biological category of sex with an evershifting concept of self-assessed gender identity," that it is a
“false claim,” and that "includes the idea that there is a vast
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spectrum of genders that are disconnected from one's sex."
§2(f).
Id.
Pertinent here, the Executive seeks to stamp “gender
ideology” out: “Federal funds shall not be used to promote
gender ideology.
Each agency shall assess grant conditions and
grantee preferences and ensure grant funds do not promote gender
ideology.”
Id. §3(f).
c.
Executive Order 14173
On January 21, 2025, President issued Executive Order No.
14173, entitled "Ending Illegal Discrimination and Restoring
Merit-Based Opportunity."
Exec. Order 14173, 90 Fed. Reg. 8633
(Jan. 21, 2025) (“EO 14173”).
Similar to EO 14151, EO 14173
purportedly seeks to end "immoral race- and sex-based
preferences under the guise of so-called [DEI] or [DEIA]," and
the order requires the Director of the OMB to "[e]xcise
references to DEI and DEIA principles, under whatever name they
may appear, from Federal acquisition, contracting, grants, and
financial assistance procedures" and to "[t]erminate all
'diversity,' 'equity,' 'equitable decision-making,' 'equitable
deployment of financial and technical assistance,' 'advancing
equity,' and like mandates, requirements, programs, or
activities, as appropriate." Id. There is, conspicuously, no
definition of DEI.
[17]
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January 21, 2021, The Pause Directive.
On January 21, 2025, HHS Acting Secretary Dorothy Fink
(“Acting Secretary Fink”), appointed January 20, 2025, ordered
an immediate communication pause until February 1, 2025.
(“the Pause Directive”).
[18]
R. 1.
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rE
i . DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary
NX Washington, D.C. 20201
TO: Heads of Operating Divisions Head
Heads of Staff Divisions
THROUGH: Wilma M. Robinson, Ph.D., Deputy Executive Secretary
FROM: Dorothy A. Fink, MD, Acting Secretary
DATE: January 21, 2025
SUBJECT: Immediate Pause on Issuing Documents and Public Communications - ACTION
As the new Administration considers its plan for managing the federal policy and public
communications processes, it is important that the President's appointees and designees have the
opportunity to review and approve any regulations, guidance documents, and other public
documents and communications (including social media). Therefore, at the direction of the new
Administration and consistent with precedent, I am directing that you immediately take the
following steps through February 1, 2025:
1. Refrain from sending any document intended for publication to the Office of the Federal
Register until it has been reviewed and approved by a Presidential appointee. Please note
that the Office of the Executive Secretary (Exec Sec) withdrew from OFR all documents
that had not been published in the Federal Register to allow for such review and approval.
2. Refrain from publicly issuing any document (e.g., regulation, guidance, notice, grant
announcement) or communication (e.g., social media, websites, press releases, and
communication using listservs) until it has been reviewed and approved by a Presidential
appointee.
3. Refrain from participating in any public speaking engagement until the event and
material have been reviewed and approved by a Presidential appointee.
4. Coordinate with Presidential appointees prior to issuing official correspondence to public
officials (e.g., members of Congress, governors) or containing interpretations or
statements of Department regulations or policy. Nothing in this guidance is intended to
limit an employee’s personal correspondence with members of Congress or other third
parties, including an employee’s whistleblower protected communications.
5. Notify Exec Sec promptly of any documents or communications that you believe should
not be subject to the directives in paragraphs 1-4 because they are required by statute or
litigation; affect critical health, safety, environmental, financial, or national security
functions of the Department; or for some other reason. Please provide the title, a brief
summary, the target release date, and the rationale for expedited release to your Exec Sec
Policy Coordinator.
The President’s appointees intend to review documents and communications expeditiously and
return to a more regular process as soon as possible.
1
NIH_GRANTS_000001
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Although referenced for completeness, this Challenged
Directive relates to Phase 2 of this Action, so will not be
discussed further at this time.
3.
February 10, 2025 -- The Secretarial Directive –Challenged Directive 2
On February 10, 2025, Acting Secretary Fink, issued the
following “Secretarial Directive on DEI-Related Funding” (“the
Secretarial Directive”):
Stylistically, this Court usually avoids inserting full
documents in its opinions lest bulk substitute for analysis.
Here, however, no paraphrasing can replace the originals and
convey what was actually going on.
6
[20]
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porn,
ey
SE DEPARTMENT OF HEALTH & HUMAN SERVICES Office of the Secretary
SS Washington, D.C. 20201
SECRETARIAL DIRECTIVE ON DEI-RELATED FUNDING
ane Hey,
February 10, 2025
The Department of Health and Human Services has an obligation to ensure that taxpayer dollars
are used to advance the best interests of the government. This includes avoiding the expenditure
of federal funds on programs, or with contractors or vendors, that promote or take part in diversity,
equity, and inclusion (“DEI”) initiatives or any other initiatives that discriminate on the basis of
race, color, religion, sex, national origin, or another protected characteristic. Contracts and grants
that support DEI and similar discriminatory programs can violate Federal civil rights law and are
inconsistent with the Department’s policy of improving the health and well-being of all
Americans.
These contracts and grants can cause serious programmatic failures and yet it is currently
impossible to access sufficient information from a centralized source within the Department of
Health and Human Services to assess them. Specifically, there is no one method to determine
whether payments the agency is making to contractors, vendors, and grantees for functions related
to DEI and similar programs are contributing to the serious problems and acute harms DEI
initiatives may pose to the Department’s compliance with Federal civil rights law as well as the
Department’s policy of improving the health and well-being of all Americans. It is also currently
impossible to assess whether payments the Department is making are free from fraud, abuse, and
duplication, as well as to assess whether current contractual arrangements, vendor agreements, and
grant awards related to these functions are in the best interests of the United States. See FAR
12.403(b), 49.101; 45 C.F.R. § 75.371-372. Finally, it is also impossible to determine with current
systems whether current contracts and grant awards are tailored to ameliorate these specific
problems and the broader problem of DEI and similar programs rather than exacerbate them. The
Department has an obligation to ensure that no taxpayer dollars are lost to abuse or expended on
anything other than advancing the best interests of the nation.
For these reasons, pursuant to, among other authorities, FAR 12.403(b) and 49.101 and 45 C.F.R.
§ 75.371- 372, the Secretary of Health and Human Services hereby DIRECTS as follows:
Agency personnel shall briefly pause all payments made to contractors, vendors, and
grantees related to DEI and similar programs for internal review for payment
integrity. Such review shall include but not be limited to a review for fraud, waste,
abuse, and a review of the overall contracts and grants to determine whether those
contracts or grants are in the best interest of the government and consistent with
current policy priorities. In addition, if after review the Department has determined
that a contract is inconsistent with Department priorities and no longer in the interest
of the government, such contracts may be terminated pursuant to the Department’s
authority to terminate for convenience contracts that are not “in the best interests of
the Government,” see FAR 49.101(b); 12.403(b). Furthermore, grants may be ,
terminated in accordance with federal law.
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In what will be a common theme throughout the agency
action, Dr. Fink chose not to define DEI at all, but merely
echoed the EOs, lumping DEI -- whatever DEI is -- as somehow
“discriminatory” in nature.
Id.
Presumably, Dr. Fink, a highly
educated physician and acclaimed researcher,7 understood the
downstream effects of the absence of definition.
There is
conspicuously nothing else in the Administrative Record
concerning the Secretarial Directive.
Dr. Fink is currently Deputy Assistant Secretary for
Women’s Health and Director of the Office of Women’s Health in
the Office of the Assistant Secretary for Health at HHS. Her
biography is located https://womenshealth.gov/about-us/who-weare/leadership/dr-dorothy-fink.
7
[22]
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4.
Document 163
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February 12, 2025 -- The Lauer Memoranda
In the ensuing days, federal courts issued temporary
restraining orders against, among others, the NIH.
In response,
on February 12, 2025, Dr. Michael S. Lauer (“Dr. Lauer”), thenDeputy Director for Extramural Research at the NIH and Michelle
G. Bulls, NIH Chief Grants Management Officer (“CGMO Bulls”),
issued to the ICs a memorandum stating that NIH "is in the
process of reevaluating the agency's priorities based on the
goals of the new administration." R. 9.
That memorandum states
that the "NIH will effectuate the administration's goals over
time, but given recent court orders, this cannot be a factor in
[Institutions and Centers’] funding decisions at this time."
Id.
The memorandum also promised "[a]dditional details on
future funding actions related to the agency's goals will be
provided under a separate memo."
Id.
[23]
The memorandum in full:
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The Court views this memorandum as hardly a ringing
endorsement of HHS’s Secretarial Directive of the Executive
Orders.
[24]
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Nevertheless, that new guidance came the next day.
On
February 13, 2025, Dr. Lauer and CGMO Bulls issued another
memorandum to ICs Chief Grant Management Officers, that
announced "hard funding restrictions" on "awards where the
program promotes or takes part in diversity, equity, and
includsion [sic] ('DEI') initiatives" with restrictions applying
"to new and continuation awards made on or after February 14,
2025."
R. 16.
The memorandum also states that, "[i]f the sole
purpose of the grant, cooperative agreement, other transaction
award (including modifications), or supplement supports DEI
activities, then the award must be fully restricted.
The
restrictions will remain in place until the agency conducts an
internal review for payment integrity.”
2025 Memorandum is set forth in full:
[25]
Id.
The February 13,
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It is unclear how the NIH could use this document to
determine the contours of DEI, where it does not define the
term, nor how to determine whether something “promotes or takes
[26]
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part in diversity equity and inclusion . . . initiatives.”
Id.8
Further, it apparently relies upon the Secretarial Directive.
Id.
Consistent with the Administrative Record, NIH Chief
Grants Management Officer Michelle Bulls testified in another
federal action that she drafted the February 13, 2025 memorandum
with Dr. Lauer and acknowledged that the ICs would determine for
themselves what in fact DEI meant:
8
Q· · Do you recognize this document?
A· · Yes.
Q· · And you wrote this document, right?
A· · I wrote it with Dr. Lauer, yes.
Q· · Okay.· And what is it?
A
It's the supplemental -- it's the beginning of the
guidance providing agency - - I mean
ICs with guidance on how to unpause funding.
Q· · And it does say that there is a Restriction.· What's
the restriction that it gives guidance about?
A· · On spending funding related to DEI activities on
grants.
Q
Was there a definition of DEI activities
provided with this memo?
MS. ANDRAPALLIYAL:· Objection.· To the extent the
information sought is deliberative and not final, I'm
instructing the witness not to answer.
BY MR. McGINTY:
Q· · How are ICs supposed to determine if something fell
within DEI activities?
A· · They have scientific, the scientific background and
they know their programs, so the Grants Management
[27]
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February 13, 2025 -– Deputy Director of
Extramural Research, Dr. Lauer Resigns and Liza
Bundensen is promoted as Acting Extramural
Research Director.
Deputy Director Lauer resigned that same day, effective
February 14, 2025.
See Second top NIH official, who oversaw
awarding of research grants, departs abruptly, Stat+ https:/,
/www.statnews.com/2025/02/13/nih-michael-lauer-deputy-directordeparts/.
Liza Bundesen (“Dr. Bundesen”) became acting director
of Extramural Research of the NIH after Dr. Lauer resigned.
That promotion was short-lived, as she resigned less three weeks
later on March 5, 2025.
April 3, 2025 Depo. Liza Bundesen 5,
State of Washington et al. v. Trump et al. , Civ No. 25-cv00244, ECF No. 276-8.
6.
February 21, 2025 -- The Memoli Directive –
Challenged Directive 5
On February 21, 2025, Dr. Matthew Memoli (“Acting Director
Memoli”), Acting Director of NIH, appointed by Dr. Fink, from
January 22, 2025 through March 31, 2025, see
https://www.nih.gov/about-nih/nih-almanac/leadership/nih-
officials work with the program officials to identify
DEI activities where it's not clear in the statute.
Dep. Michelle Bulls 99-100, Decl. Chris Pappavaselio, Ex. 41,
ECF No. 77-41. When asked about what statute, she assumed that
Minority Health Disparity Institute had some language, but
ultimately testified she did not know if “it ties directly, but
I think that is being used. And that’s an assumption, that’s
not facts.” Id.
[28]
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directors/matthew-j-memoli-md-ms, and currently Principal Deputy
Director of the NIH, sent an email to Nina Schor, Deputy
Director for Intramural Research, Alfred Johnson, Deputy
Director for Management, and Dr. Bundesen, Deputy Director of
Extramural Research:
R. 2929.
It is unclear what Dr. Memoli told the recipients of
his email about the supposed “plan of action,” but on that same
date Dr. Memoli issued a Directive entitled “Restoring
Scientific Integrity and Protecting Public Investment in NIH
[29]
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Awards” (“the Memoli Directive”), which was sent out by Deputy
Dr. Bundesen:
R. 3823.
The memorandum was attached:
[30]
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Directive on NIH Priorities
Agency: National Institutes of Health
Office of the Director
Action: Directive
FOR FURTHER INFORMATION CONTACT:
National Institutes of Health
Office of the Director
EFFECTIVE DATE: February 21, 2025
Restoring Scientific Integrity and Protecting the Public Investment in NIH Awards
The National Institutes of Health (NIH) is the largest public funder of biomedical and behavioral
research in the world. The public trusts NIH with substantial funds to foster creative discoveries
that will improve health and prevent disease in this Country. Accordingly, NIH is committed to
promoting only the highest level of scientific integrity, public accountability, and social
responsibility in the programs it funds. And NIH promises to prioritize the funding of projects
that will generate a high return on the public’s investment, so that taxpayer dollars are not going
to waste. Every dollar should be used to make Americans live longer, healthier lives.
This mission requires NIH to ensure that it is not supporting low-value and off-mission research
programs, including but not limited to studies based on diversity, equity, and inclusion (DEI) and
gender identity. While this description of NIH’s mission is consistent with recent Executive
Orders issued by the President, I issue this directive based on my expertise and experience;
consistent with NIH’s own obligation to pursue effective, fiscally prudent research; and pursuant
to NIH authorities that exist independently of, and precede, those Executive Orders.
Research programs based primarily on artificial and non-scientific categories, including
amorphous equity objectives, are antithetical to the scientific inquiry, do nothing to expand our
knowledge of living systems, provide low returns on investment, and ultimately do not enhance
health, lengthen life, or reduce illness. Worse, DEI studies are often used to support unlawful
discrimination on the basis of race and other protected characteristics, which harms the health of
Americans. Therefore, it is the policy of NIH not to prioritize such research programs.
Likewise, research programs based on gender identity are often unscientific, have little
identifiable return on investment, and do nothing to enhance the health of many Americans.
Many such studies ignore, rather than seriously examine, biological realities. It is the policy of
NIH not to prioritize these research programs either.
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R. 3821 - 3822.
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The Memoli Directive notably picks up gender
identity language for the first time.
[32]
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While Dr. Memoli claimed that this Directive is based upon
his “expertise and experience” and attempts to make it appear
the NIH was acting “independently” it is obvious that much, if
not all, of the content was provided to him by HHS.
Indeed, the
record reflects that HHS spoon-fed Dr. Memoli exactly what to
say in his Directive as later drafts of guidance confirm that
certain specific language was provided by HHS, even going so far
as to putting it in quotations:
R. 3280.
There is evidence in the record that on that same
date, Dr. Memoli was taking advice as to NOFOs that purportedly
did not align with the new objectives from Brian M. Smith, an
official in the so-called Department of Government Efficiency
(“DOGE”).
R. 3752-3753.
[33]
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February 22, 2025 -- NOFOs Taken Down
On Saturday, February 22, 2025, Brad Smith of DOGE sent a
list to Dr. Memoli of NOFOs that in their view did not fall
within the Memoli Directive:
[34]
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Dutifully, Dr. Memoli instructed Director Bundesen to
remove published NOFOs because of a lack of alignment:
[35]
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R. 3810.
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Dr. Memoli then, equally dutifully, reported back to
DOGE:
[36]
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R. 3751.
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DOGE acknowledged the response, providing what this
Court finds to be false deference by DOGE:
R. 3752.
8.
February 28, 2025 – The Grant Terminations Begin
On February 28, 2025, the first batch-terminations
[37]
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occurred.
R. 1403.
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Dr. Memoli forwarded a spreadsheet to Dr.
Bundesen, who forwarded it to CMGO Bulls.9
Consistent with the Administrative Record, Dr. Bundesen
testified that as for decisions on terminations, that DOGE was
involved in selecting the grants to be terminated, apparently
out of the blue:
9
Q
How did you first learn that grants were going to
be terminated on February 28th?
A
I received a text message over Microsoft Teams
from James McElroy. He said, Liza - - something to
the effect of: Liza, can you please get in touch with
Rachel Riley ASAP, she's been trying to reach you.
I'm paraphrasing.
I said, James, I'm sorry, I do not know who Rachel
Riley is. And then shortly thereafter, James called
me over a Microsoft Teams video call, and so he was
there and Rachel Riley was there. She - introduced
herself as being part of DOGE, who was working with
HHS.
And she informed me that a number of grants will need
to be terminated and that Matt Memoli will be sending
me an e-mail, a list of grants in an e-mail shortly
thereafter.
Q Did she explain why the grants were being
terminated?
A No.
Q Did you ask?
A She explained that -- excuse me, let me
clarify.
She said that the current administration's OGC has a
different opinion from the previous administration's
OGC on grant termination and, therefore, we will need
to terminate grants by the end of the day.
[38]
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That email and spreadsheet is part of the record:
I did not ask what, you know, what grants because I
just literally was a little bit confused and caught
off guard. And so I waited to see what I would
receive by e-mail.
Q: And then what did you receive by e-mail?
A: I received an e-mail from Matt Memoli that said
something to the effect of: Liza, the attached list
of grants need to be terminated by COB today. And
there was an Excel file attached to the e-mail.
Bundesen Depo. 60 – 61.
[39]
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R. 2295 – 2302.
research.
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Recall that Dr. Bundesen oversaw extramural
There is no evidence of any discussion, rather, the
evidence in the Administrative Record that Dr. Bundesen followed
orders that apparently went from Riley to Dr. Memoli to Dr.
Bundesen and on down the chain.
Smith is copied on this email.
CGMO Bulls’s testimony in another case confirms what the
Administrative Record reveals:
Q· · This is one of those letters that you've been
asked to send that you were just talking about?
A· · Yes.
Q· · And you signed this letter, right?
A· · Yes.
Q· · Okay.· And why did you send this letter?
A· · I was asked to send it.
Q· · Who asked you to send it?
A
My supervisor.
Q· · Okay.· And who is that?
A· · At the time, Liza Bundesen.
* * *
Q· · Did she tell you why she was asking you to
send it?
A· · Yes.
Q· · Okay.· And what did she say?
A· · That we were asked to terminate grants.
Q· · Did she tell you why you were asked to
[40]
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terminate grants?
A· · She did not.
Q· · Okay.
A· · Can I correct the statement? The e-mail that I
received from Liza Bundesen indicated that we needed
to terminate the grants, and the language in the
letters were provided so I didn't question, I just
followed the directive.
Q· · Okay.
A· · She didn't say:· Terminate the grant because of.·
She said:· The list below.· So I just wanted to be
clear about that.
* * *
Q· · Okay.· And is that the same list that you
were talking about earlier that came from Rachel
Riley?
A· · That was on the same e-mail, yes.
Depo. Bulls 66-68.
CGMO Bulls describes the letters,
accurately, as “template letters”
Id.
She also testified that
but for her signature on the letters, she did not create any of
the language, which was provided by Rachel Riley, and that she
is unaware whether the NIH undertook any assessment at all as to
whether a particular grant met the criteria being espoused in
the letters.
Id.
The testimony concerning the February 28,
2025 letters comports with the Administrative Record, though the
grant described is not one before this Court:
Q· · So it says here -- actually, can you read
[41]
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the fourth paragraph, the one that starts with, "This
award no longer effectuates."
A· · "This award no longer effectuates agency
priorities.· NIH is obligated to carefully steward
grant awards to ensure taxpayer dollars are used in
ways that benefit the American people and improve
their quality of life.· Your project does not satisfy
these criteria.· Research programs based on gender
identity are often unscientific, have little
identifiable return on investment, and do nothing to
enhance the health of many Americans.· Many such
studies ignore, rather than seriously examine,
biological realities.· It is the policy of NIH not to
prioritize these research programs."
Q· · Okay.· And this was part of the template letter
that Rachel Riley provided?
A· · Yes.
* * *
·
Q· · Was this edited in any way from the template
letter that Rachel Riley provided?
A· · No.
Q· · Okay.· It says, "Your project does not satisfy
these criteria."· Do you see that there?
A· · Yeah.
Q· · Are you aware of any assessment of Dr. Ahrens'
grant in particular that was made to see if her grant
satisfied the criteria?
A· · No.
Q· · Would you have been aware of such assessment if
one had been made?
A· · I don't know.
Q· · Okay.· Would you have been aware of such an
assessment if one had been made by NIH?
A· · Yes.
[42]
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Q· · And it says, "Research programs based on
gender identity are often unscientific with little
identifiable return on investment, and do nothing to
enhance the health of many Americans." Did NIH do any
assessment of this particular grant to see if it was
unscientific?
A· I don't know.· The letter was provided and it was
sent.· I don't know what happened before ·8· ·that.
Q· · Well, did NIH do any assessment?
A· · I don't know.
Q· · You don't know if NIH did an assessment to
see if Dr. Ahrens' grant was scientific or not?
A· · Are you talking about -- I don't understand your
question, sorry.
Q· · Well, it says in this letter, and I
understand you didn't write it, but you signed it,
"Research programs based on gender identity are
often unscientific."· And that was the reason this
particular grant was terminated. ·Is that right?
A· · That's what the letter says.
Q· · That's what the letter says.· So I'm trying to
figure out whether or not there was any basis to think
that Dr. Ahrens' grant was unscientific.
A· · I don't know.
Q· · Okay.· And do you know if there was any
assessment to see if it had an identifiable return
on investment?
A· · No, I don't know.
Q· · Do you know if NIH did one?
A· · I don't know.
[43]
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· Q· · Okay.· Would you have been aware if NIH
did one?
A· · I'm not sure.
Q· · Okay.· And it also says, "and do nothing
to enhance the health of many Americans." Do you know
if NIH did any assessment to see if Dr. Ahrens' grant
would enhance the health of many Americans?
A· · I don't know.
* * *
Q ·
Did Rachel Riley provide any other template letters
that were sent?
A· · Yes.
Q· · Okay.· What were those template letters about?
A· · In that [February 28, 2025] list, I don't recall.
Q· · How about any list for letters that had been sent?
A· · DEI activities, this language.· I think one on China.·
I don't know.· That's it that I can recall, and I'm
sure I'm blanking right now.
Q· · So what you remember is the gender identity language,
the DEI language, and the China. Was there language
on vaccine hesitancy that was used?
A· · In that batch, no.
Bulls Depo. 72 – 74.
CMGO Bulls later testified, again,
consistent with the Administrative Record, that Rachel Riley
provided the following DEI language in template letters:
· ·
Q
And then it says, "DEI:· Research programs based
primarily on artificial and non-scientific categories,
including amorphous equity objectives, are
antithetical to scientific inquiry, do nothing to
expand our knowledge of living systems, provides low
returns on investment, and ultimately do not enhance
[44]
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health, lengthen life, or reduce illness.· Worse, so
called diversity, equity, and inclusion (DEI) studies
are often used to support unlawful discrimination on
the basis of race and other protected characteristics,
which harms the health of Americans. Therefore, it is
the policy of NIH not to prioritize such research
programs." ·That language also was provided by Rachel
Riley?
A
Id.
Yes.
90 - 91.
Consistent with the Administrative Record, CMGO
Bulls testified that she was provided lists with the categorical
reasons for termination, and she executed based on those lists.
She had no input into which grants were terminated or for what
reasons:
Q· · Okay.· But it's your testimony that the reason that
the grant is going to be terminated is provided to
you.· Is that right?
A· · That's right.
Q· · And you don't have any input into that?
A· · I don't.
Q· · Okay.· And you're testifying that the template letter
for each reason is provided to you. Is that right?
A· · Yes.
·
Q· · And you don't have any input into that either?
A· · I don't.
Id. 97 - 98.
From January 20, 2025 through April 2025, CMGO
Bulls had received “more than five lists” of grants to
terminate, and she estimated that at that time between 500 and
1,000 grants had been terminated.
Id.
[45]
98 – 99.
While there
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had been a “handful” of noncompliance terminations of which the
NIH had undertaken between 2012 through January 20, 2025, Bulls
Depo. 46 (“My testimony is that it doesn’t happen often, more
than one and probably less than five.”), the current type of
terminations that were dictated from HHS had occurred only once
before during the prior Trump Administration.
Id. 47 -48.
The
Administrative Record is replete with a large number of these
new, dictated terminations.
The templates for these letters are all variations on a
theme, and has been dictated onto the NIH by Riley as a reasonfor-termination menu.
A good example is provided in full, but
the record is replete with examples of the templates being used:
[46]
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PRIVILEGED, CONFIDENTIAL, PRE-DECISIONAL
FOR GRANTS ISSUED DECEMBER 2022-MARCH 2024 (TO BE DELTED)
[Address block & date]
[Grant recipient]:
Funding for Project Number [INSERT] is hereby terminated pursuant to the 2022 National
Institutes of Health (“NIH”) Grants Policy Statement,!? and 2 C.F.R. § 200.340(a)(2) (2023). This
letter constitutes a notice of termination. '*
The 2022 Policy Statement applies to your project because NIH approved your grant on
[INSERT DATE]. and “obligations generally should be determined by reference to the law in effect
when the grants were made.”!°
The 2022 Policy Statement “includes the terms and conditions of NIH grants and
cooperative agreements and is incorporated by reference in all NIH grant and cooperative
agreement awards.”!® According to the Policy Statement, “NIH may ... terminate the grant in
whole or in part as outlined in 2 CFR Part 200.340."!7 At the time your grant was issued, 2 C.F.R.
§ 200.340(a)(2) permitted termination “[b]y the Federal awarding agency or pass-through entity,
to the greatest extent authorized by law. if an award no longer effectuates the program goals or
agency priorities.”
This award no longer effectuates agency priorities. NIH is obligated to carefully steward
grant awards to ensure taxpayer dollars are used in ways that benefit the American people and
improve their quality of life. Your project does not satisfy these criteria. [INSERT
EXPLANATION—EXAMPLES BELOW
e China: Bolstering Chinese universities does not enhance the American people’s quality of
life or improve America’s position in the world, On the contrary. funding research in China
contravenes American national-security interests and hinders America’s foreign-policy
objectives.
e DEI: Research programs based primarily on artificial and non-scientific categories.
including amorphous equity objectives, are antithetical to the scientific inquiry. do nothing
to expand our knowledge of living systems, provide low returns on investment, and
ultimately do not enhance health, lengthen life, or reduce illness. Worse, so-called
diversity. equity, and inclusion (“DEI”) studies are often used to support unlawful
discrimination on the basis of race and other protected characteristics, which harms the
13 https://grants.nih.gov/grants/policy/nihgps/nihgps_2022 pdf.
1499 CFR. § 200.341(a): 45 C_FR. § 75.373
15 Bennett v. New Jersey, 470 U.S. 632, 638 (1985).
16 2022 Policy Statement at IIA-1.
" Td at TA-153.
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PRIVILEGED, CONFIDENTIAL, PRE-DECISIONAL
health of Americans. Therefore, it is the policy of NIH not to prioritize such research
programs.
e Transgender issues: Research programs based on gender identity are often unscientific.
have little identifiable return on investment, and do nothing to enhance the health of many
Americans. Many such studies ignore, rather than seriously examine, biological realities.
It is the policy of NIH not to prioritize these research programs. ].
Although “NIH generally will suspend (rather than immediately terminate) a grant and
allow the recipient an opportunity to take appropriate corrective action before NIH makes a
“18 no corrective action is possible here. The premise of Project Number
termination decision.
[INSERT] is incompatible with agency priorities, and no modification of the project could align
the project with agency priorities.
Costs resulting from financial obligations incurred after termination are not allowable.!®
Nothing in this notice excuses either NIH or you from complying with the closeout obligations
imposed by 2 C.F.R. §§ 75.381-75.390. NIH will provide any information required by the Federal
Funding Accountability and Transparency Act or the Office of Management and Budget’s
regulations to USAspending.gov.*°
Administrative Appeal
You may object and provide information and documentation challenging this termination.”!
NIH has established a first-level grant appeal procedure that must be exhausted before you may
file an appeal with the Departmental Appeals Board.”
You must submit a request for such review to [the NIH Director or his designee] no later
than 30 days after the written notification of the determination is received, except that if you show
good cause why an extension of time should be granted, [the NIH Director or his designee] may
grant an extension of time.”
The request for review must include a copy of the adverse determination, must identify the
issue(s) in dispute, and must contain a full statement of your position with respect to such issue(s)
and the pertinent facts and reasons in support of your position. In addition to the required written
statement, you shall provide copies of any documents supporting your claim.”4
Sincerely,
18 2022 Policy Statement at ITA-154.
19 See 2 CFR. § 200.343 (2023).
202 CER. § 200.341(c): 45 CER. § 75.373(c)
21 See 45 CER. § 75.374.
> See 42 CFR. Part 50. Subpart D.
3 Id § 50.406 (a).
4 Td § 50.406(b).
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R. 2482 - 2483.
9.
March 2025 -- The NIH Priorities Directives
Emerge
Between March 4, 2025, and March 25, 2025 internal staff
guidance was issued.
See March 4, 2025 email from CMGO Bulls to
Chief GMOs, R. 345.
The guidance is provided in full:
[49]
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Staff Guidance —Award Assessments for Alignment with Agency Priorities - March
2025
Background
This staff guidance rescinds the guidance provided in the February 13, 2025, memo to IC Chief
Grants Management Officers entitled Supplemental Guidance — NIH Review of Agency Priorities
Based on the New Administration’s Goals. In accordance with the Secretarial Directive on DEI
Related Funding (Appendix 1), NIH will no longer prioritize research and research training programs
that focus on Diversity, Equity and Inclusion (DEI). Terminations that result from science that no
longer effectuates NIH’s priorities must follow the appeals guidance below. All other terminations
for noncompliance require, always, appeal language.
Prior to issuing all awards (competing and non-competing) or approving requests for carryover, ICs
must review the specific aims assess whether the proposed project contains any DE| research
activities or DEI language that give the perception that NIH funds can be used to support these
activities. To avoid issuing awards, in error, that support DEI activities ICs must take care to
completely excise all DEI activities using the following categories.
Category 1: The sole purpose of the project is DEI related (e.g., diversity supplements or
conference grant where the purpose of the meeting is diversity), and/or the application was
received in response to a NOFO that was unpublished as outlined above.
2 Action: ICs must not issue the award.
Category 2: Project partially supports DEI activities (i.e., the project may still be viable if
those aims or activities are negotiated out, without significant changes from the original
peer-reviewed scope) this means DE| activities are ancillary to the purpose of the project. In
some cases, not readily visible. This category requires a scientific assessment and requires
the GM to use the DEI Restriction Term of Award in Section IV of the Notice of Award, no
exceptions will be allowed without a deviation from the Office of Policy for Extramural
Research Administration (OPERA)/Office of Extramural Research (OER).
o Action 1: Funding IC must negotiate with the applicant/recipient to address the
activities that are non-compliant, along with the associated funds that support
those activities, obtain revised aims and budgets, and document the changes in the
grant file.
o Action 2: Once the IC and the applicant/recipient have reached an agreement, issue
the award and include the DEI Term and Condition of Award in Section IV of the
Notice of Award. Hard funds restrictions are not required.
= Note: Ifthe IC and the applicant/recipient cannot reach an agreement, or
the project is no longer viable without the DEI related activities, the IC
cannot proceed with the award. For ongoing projects, the IC must work with
OPERA to negotiate a bilateral termination of the project. Where bilateral
termination cannot be reached, the IC must unilaterally terminate the
project. Terminated awards (bilaterally or unilaterally) should follow the
process identified in Appendix 2.
NIH_GRANTS_002152
REET ee
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R. 2152 -2153.
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Again, no definition is provided for DEI.
Multiple appendices are provided, simply stating that it is “in
accordance with the Secretarial Directive,” which is included as
an appendix.
R. 2154 – 2155.
It also includes the boilerplate
language regarding DEI, “transgender issues,” and China:
[51]
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R. 2157.
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Notably, Appendix 4 delves into renegotiated awards
concerning DEI activities.
Anticipating questions about an
[52]
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undefined DEI, the NIH invites recipients to inquire before
drawing down funds.
Id.
Throughout March 2025, the Priorities
directive was modified for certain procedures, but the
boilerplate language of the reasons for termination did not
substantially vary.
10.
Friday, March 7, 2025 -- Deputy Director Bundesen
Resigns and Acting Director Memoli Appoints
Himself Acting Deputy Director of Extramural
Research
On Friday, March 7, 2025, a mere three weeks after
appointment as Acting Deputy Director of Extramural Research,
Director Bundesen resigned from the NIH.
11.
March 10, 2025
Dr. Memoli was in the thick of it, and he sent an email to
his Deputies and general counsel, expressing that week was going
to be busy:
[53]
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From: Lorsch, Jon (NIH/NIGMS) [E]
To: Bulls, Michelle G. (NIH/OD) [E]
Subject: FW: OER
Date: Monday, March 10, 2025 9:15:25 AM
Attachments: 1VH Termination 3-10-25.xIsx
Importance: High
Do you want to send this out or do you want me to? | assume it should go to GMAC with CC to
EPMC?
Let me know how you would like to proceed.
Thanks.
Jon
From: "Memoli, Matthew (NIH/OD) [E]"
Date: Monday, March 10, 2025 at 8:37 AM
To: "Lorsch, Jon (NIH/NIGMS) [E]" , "Jacobson, Ray (NIH/CSR) [E]" , "Schwetz, Tara
(NIH/OD) [E]"
Cc: "McElroy, James (NIH/OD) [E]" , "Burklow, John (NIH/OD) [E]", "Lankford, David
(NIH/OD) [E]"
Subject: OER
Good morning,
This is going to be a busy week for OER. There will be many actions this week similar to
this. Two things this morning:
1. | would like an updated list of all grants terminated so far.
2. | attached al list of 43 grants, OTA, and NOFOs that need to be terminated/taken
down, preferably by COB today if possible. These are on the first tab of the
spreadsheet. These no longer align with HHS priorities so we can use the
termination letters we have been using regarding HHS priorities.
Please have someone confirm with me when this is complete.
Thank you all again for your efforts and taking OER on.
Matt
Matthew J. Memoli, MD, MS
Acting Director, National Institutes of Health
9000 Rockville Pike
Bethesda, MD 20892
matthew.memoli@nih.gov
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R. 2352.
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He wasn’t wrong.
a.
The Columbia University Bulk Terminations -Another Example of the Weaponization of the NIH
Separate to the categorized grant terminations, there is a
curious exchange in the Administrative Record concerning the NIH
weighing in on the Columbia University campus unrest.
As best
the Court can discern, the NIH was being required to come down
hard on Columbia University and cancel their grants on the basis
of campus unrest.
There is no evidence in the record that this
had ever been done before.
Deputy Director Lorsch, perhaps
understanding the implications of cancelling all grants to a
research university, appeared to be trying to soften the blow
recommending to Dr. Memoli to fire a warning shot across
Columbia University’s bow -- that Columbia be put on notice that
NIH “intended” to terminate a list of grants.
Dr. Memoli
provided that same recommendation to David Lankford, the NIH’s
General Counsel:
[55]
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R. 3462.
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The email attached a list of Columbia’s grants and a
draft letter, dated March 7, 2025.10
The draft without the list
is set forth in full here:
This draft letter date coincides with a March 7, 2025
Department of Justice/HHS, Department of Education and General
Services Administration Press Release which stated “GSA will
assist HHS and ED in issuing stop-work orders on grants and
contracts that Columbia holds with those agencies. These stop10
[56]
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work orders will immediately freeze the university’s access to
these funds. Additionally, GSA will be assisting all agencies in
issuing stop work orders and terminations for contracts held by
Columbia University.” Mar. 7, 2025 Press Release,
https://www.hhs.gov/press-room/task-force-cancels-columbiauniversity-grants.html
[57]
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R. 3503-3504.
Drs. Lorsch’ s and Memoli’s softer approach was apparently
wholly rejected; the Administrative Record reflects a full
termination:
[58]
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~~
: C. tr National Institutes of Health
Ye, Office of Extramural Research
te)
March 10, 2025
Angela V. Olinto, Ph.D.
Provost, Columbia University
Email: provost@columbia.edu
Dear Dr. Olinto:
NIH is hereby providing notice that funding for the projects in the attached spreadsheet
will be terminated pursuant to the National Institutes of Health (“NIH”) Grants Policy Statement
(GPS),! and 2 C.FR. § 200.340(a)(4).
As reflected in the Notices of Award for the most recent budget period of these projects.
the NIH Grants Policy Statement is incorporated as a term and condition of award. The GPS
“includes the terms and conditions of NIH grants and cooperative agreements and is incorporated
by reference in all NIH grant and cooperative agreement awards.” According to the GPS. “NIH
may ... terminate the grant in whole or in part as outlined in 2 CFR Part 200.340." At the time
the Notices of Award were issued for the most recent budget period, 2 C.F.R. § 200.340(a)(4)
permitted termination “[b]y the Federal awarding agency or pass-through entity, to the greatest
extent authorized by law, if an award no longer effectuates the program goals or agency priorities.”
These awards no longer effectuate agency priorities. NIH is obligated to carefully steward
grant awards to ensure taxpayer dollars are used in ways that benefit the American people and
improve their quality of life. Your project does not satisfy these criteria.
NIH is responsible for ensuring that its limited resources are appropriately allocated. NIH
policy is that grant dollars should support institutions that foster safe. equal, and healthy working
and learning conditions conducive to high-quality research and free inquiry’—and should not
subsidize institutions that are not built on American values of free speech, mutual respect. and
open debate. In this vein, NIH is aware of recent events at Columbia University involving
antisemitic action that suggest the institution has a disturbing lack of concern for the safety and
wellbeing of Jewish students. Columbia’s ongoing inaction in the face of repeated and severe
harassment and targeting of Jewish students has ground day-to-day campus operations to a halt,
deprived Jewish students of learning and research opportunities to which they are entitled. and
brought shame upon the University and our nation as a whole. Supporting research in such an
| https://grants .nih.gov/grants/policy/nihgps/nihgps.pdf.
2 NIH GPS. Section 3.
3 Td_at Section 8.5.2.
+ NIH GPS. Section 4.
1
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While the parties do not appear to assert
claims based directly upon this letter, it was included in the
Administrative Record, and in the Court’s view is further
[60]
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evidence of the NIH’s grant process being abused as a bludgeon,
this time to sanction Columbia University for the
Administration’s perception of inaction by Columbia with respect
to campus unrest.
While the Court takes no position as to the
merits of the Executive’s perception or of the legality of its
action, it is clear that Drs. Memoli and Lorsch at least had
some pause as to a wholesale termination of Columbia’s grants,
numbering in the hundreds.
R. 3807 – 3809.
Indeed, how the
scientific and research activities had any connection with
unrest issues on Columbia’s campus is conspicuously never
explained.
The record evidence certainly reveals none.
12.
March 10, 2025 Further Terminations
The record is replete with termination activity.
10, 2025, grants were terminated.
1333; 1357 -1363.
On March
See e.g. R. 794 – 795; 1326 -
On March 11, 2025, Riley sent Dr. Memoli a
list of grants to terminate, that were approved by Dr. Memoli
within 2 minutes of the email having been sent:
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R. 3820.
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There is record evidence of template letters being
sent on that date.
R. 297 – 298; 653 -654
3509; 3585 – 3586.
[62]
711- 712; 3508 -
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March 12, 2025 -- Further Terminations
On March 12, 2025, Dr. Memoli sent an email to Deputy
Director Lorsch and Bulls with a list of grants to terminate.
R. 3631 - 3635.
Brad Smith of DOGE is copied on the email.
R. 2932-2933; 3631.
e.g.
Terminations were issued on that date.
R. 651 - 652 709 – 710.
On March 13, 2025, Dr. Memoli sent an email to Deputy
Director Lorsch and Bulls, directing them to terminate an
additional 530 grants.
Brad Smith of DOGE is copied on the
email, which is provided in full:
[63]
Id.
See
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R. 3122 – 3191.
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There is record evidence of multiple
terminations of grants.
See e.g., R. 3593 – 3630; March 14,
2025 (R. 289 – 290); March 18, 2025 (R. 440- 441; 601 – 602);
March 19, 2025 (R. 391 – 392); March 20, 2025 (R. 158 – 159;
449- 450; 745 -746; 1348 -1349; 1371- 1375; 1392 – 1392; 13971398); March 21, 2025 (R. 114 – 116; 152 – 153; 187 – 189; 757 759; 771- 773; 782 - 784; 810-814; 859 - 861; 871 – 873; 877 878; 995-996; 1195 -1197; 1237 -1242; 1268-1273; 1284 - 1292;
1380 – 1384; 1399 - 1401; 1416- 1421; 1483 – 1484; 1492 -1493;
1668 - 1670; 1689 -1694; 2415 – 2468); March 24, 2025 (R. 689[64]
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691; 747 – 749; 844 – 846; 1218 - 1220; 1299 - 1301; 1309 1310; 2257 – 2258).
14.
March 25, 2025 – Staff Guidance (Priorities
Directive)
On March 25, 2025, the NIH issued further guidance (“the
March 25 Guidance”).
R 3216 -3230.
This is a continuation of
the Priorities Directive, which was changing on the fly over
March, though it is not clear whether any grants were terminated
based upon this guidance.
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INTERNAL: NOT FOR DISTRIBUTION OUTSIDE THE GOVERNMENT
e OPERAwill place a hard funds restriction on all PMS subaccounts as
termination letters are issued. OPERAs Federal Financial Report
Center (FFR-C) will deobligate the remaining funds after the Final
FFRs are submitted. There is no deobligation action required from
the ICs.
* Remove all future years from the project, where applicable. If the grant is in
a no cost extension, and HHS requests a termination, the project must be
terminated even in a no cost extension. If the grant is in a no cost extension,
and HHS did not request a termination, follow the NCE guidance above.
* Include the following Termination Term in the revised NOA:
It is the policy of NIH not to prioritize [insert termination category language
from Appendix 3, verbatim]. Therefore, this project is terminated.
[RECIPIENT NAME] may request funds to support patient safety and orderly
closeout of the project. Funds used to support any other research activities
will be disallowed and recovered. Please be advised that your organization,
as part of the orderly closeout process will need to submit the necessary
closeout documents (i.e., Final Research Performance Progress Report, Final
Invention Statement, and the Final Federal Financial Report (FFR), as
applicable) within 120 days of the end of this grant.
NIH is taking this enforcement action in accordance with 2 C.ER. § 200.340
as implemented in NIH GPS Section 8.5.2. This revised award represents the
final decision of the NIH. It shall be the final decision of the Department of
Health and Human Services (HHS) unless within 30 days after receiving this
decision you mail or email a written notice of appeal to Dr. Matthew
Memoli. Please include a copy of this decision, your appeal justification,
total amount in dispute, and any material or documentation that will
support your position. Finally, the appeal must be signed by the institutional
official authorized to sign award applications and must be dated no later
than 30 days after the date of this notice.
" Note: Appeals language must be included prior to October 1, 2025. After
October 1, 2025, when HHS will fully adopt 2 CFR 200, per 2 CFR 200.340
termination actions taken based on agency priorities are not appealable.
This is different from terminations based on noncompliance (administrative
and programmatic).
o eRA provides OPERA with daily reports on NOAs issued, so ICs do not need to report to
OPERA on each action completed.
Category 5: Awards to Entities in certain foreign countries
o Additional guidance on awards to foreign entities is forthcoming. At this time, ICs should
hold all awards to entities located in South Africa or countries identified on any of the
following lists.
" State Department Countries of Particular Concern
® State Sponsors of Terrorism
= Final Rule Restricting Transfer of Personal U.S. Data to Countries of Concern
6
ee
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The March 25 Guidance settles on an examples list of:
"China," "DEI," "Transgender issues," “Vaccine Hesitancy",
"COVID-related" research:
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R. 3226.
The March 25 Guidance also features an FAQ section that
includes, among other instructions:
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In addition, "Notice of Funding Opportunity (NOFO)
Guidance," was listed as "[pending]."
R. 3228.
On May 15, 2025, it appears that Dr. Memoli was provided an
expanded list from the Office of General Counsel
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Appendix 3 — Language provided to NIH by HHS providing examples for research activities that NIH no
longer supports.
China: “Bolstering Chinese universities does not enhance the American people’s quality of life or
improve America’s position in the world. On the contrary, funding research in China contravenes
American national-security interests and hinders America’s foreign-policy objectives.”
DEI: “Research programs based primarily on artificial and non-scientific categories, including
amorphous equity objectives, are antithetical to the scientific inquiry, do nothing to expand our
knowledge of living systems, provide low returns on investment, and ultimately do not enhance
health, lengthen life, or reduce illness. Worse, so-called diversity, equity, and inclusion (“DEI”)
studies are often used to support unlawful discrimination on the basis of race and other
protected characteristics ICO’s, which harms the health of Americans. Therefore, it is the policy
of NIH not to prioritize such research programs.”
Gender-Affirming Care: “Research programs based on gender identity are often unscientific,
have little identifiable return on investment, and do nothing to enhance the health of many
Americans. Many such studies ignore, rather than seriously examine, biological realities. It is
the policy of NIH not to prioritize these research programs.” Reminder: At this time, do not
terminate any grants related to gender identify/transgender without clearance from OER. All
such actions must be approved before any terminations.
Vaccine Hesitancy: “It is the policy of NIH not to prioritize research activities that focuses gaining
scientific knowledge on why individuals are hesitant to be vaccinated and/or explore ways to
improve vaccine interest and commitment. NIH is obligated to carefully steward grant awards to
ensure taxpayer dollars are used in ways that benefit the American people and improve their
quality of life. Your project does not satisfy these criteria.”
COVID (to be used for HHS/NIH OD directed terminations only): “The end of the pandemic
provides cause to terminate COVID-related grant funds. These grant funds were issued for a
limited purpose: to ameliorate the effects of the pandemic. Now that the pandemic is over, the
grant funds are no longer necessary.” Note: ICO’s may continue to support projects that funds
general biology of coronavirus not linked to COVID-19. As ICO’s conduct in-house analysis of
project portfolios related to COVID the term may change. Please work with OPERA to develop
standard terms based on the outcome of the analysis.
Climate Change: “Not consistent with HHS/NIH priorities particularly in the area of health effects
of climate change.”
Influencing Public Opinion: “This project is terminated because it does not effectuate the
NIH/HHS’ priorities; specifically, research related to attempts to influence the public’s opinion.”
R. 3536. Again, usage of this list was mandatory:
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3541.
The terminations continued.
See March 26, 2025 (R. 1639 -
1641); March 31, 2025 (R. 2488); April 1, 2025 (R. 760-761;
1274-1276; 1376 – 1378; 1394 -1396); April 2, 2025 (R. 35 – 36;
3762 – 3803); April 7, 2025 (R. 1652); April 8, 2025 (R.
1653 -
1667); May 9, 2025 (R. 3452).
IV.
RULINGS OF LAW
A.
This Court Maintains Jurisdiction Save For
Category of China which has not Harmed these
Plaintiffs
This Court retains jurisdiction.
The Public Officials
press that the Court has no jurisdiction because their highlevel activities are interlocutory and the grant terminations,
claiming there is no final agency action under the APA.
With
the exception of grant terminations on the basis of China, all
of these arguments are rejected.
1.
The Plaintiffs Have No Standing as to the “China”
Category
The parties do not dispute that action has not been taken
concerning the category of “China.”
Accordingly, the Court
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VACATES its earlier order solely as to this category, that does
not apply.
2.
Final Agency Action
Final agency action “includes the whole or a part of an
agency rule, order, license, sanction, relief, or the equivalent
or denial thereof, or failure to act.”
5 U.S.C.A. § 551 (13),
and a “rule” thereunder “means the whole or a part of an agency
statement of general or particular applicability and future
effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice
requirements of an agency.”
5 U.S.C. § 551(4).
“As a general
matter, two conditions must be satisfied for agency action to be
‘final’: First, the action must mark the ‘consummation’ of the
agency's decisionmaking process. . . -- it must not be of a
merely tentative or interlocutory nature.
And second, the
action must be one by which rights or obligations have been
determined, or from which legal consequences will flow.”
Bennett v. Spear, 520 U.S. 154 (1997).
The Challenged Directives, as a whole, constitute final
agency actions at the macro-level, and the resultant, downstream
individual terminations and other effects are also independent
final agency action as to each of the affected grants.
The
Public Officials attempts to narrow the action to grant
terminations and characterization of the Priorities Directives
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by CMGO Bulls “as not independently challengeable”
oversimplifies the record and is a myopic view of the
Administrative Record.
Certainly, taking any particular document in isolation and
out of temporal context is superficially appealing.
But the
agency action here occurred in the context of a wholesale effort
to excise grants in 8 categories over a period of less than 90
days.
HHS directed NIH to cut without a plan and NIH, with the
assistance of DOGE, made it up as they went along, resulting in
a paper trail of the Challenged Directives.
The Public
Officials were trying to comply with an Executive Order 60-day
deadline.
See EO 14151 § 2 (B)(i) ("Each agency, department, or
commission head, in consultation with the Attorney General, the
Director of OMB, and the Director of OPM, as appropriate, shall
take the following actions within sixty days of this order: . .
. terminate, to the maximum extent allowed by law, all. .
.equity action plans," ‘equity’ actions, initiatives, or
programs, ‘equity-related’ grants or contracts”).
Their
expedition in implementation included all of the Challenged
Directives.
The Public Officials argue “that this case is
nothing like Biden v. Texas, where the agency directed personnel
to take all necessary actions to shut down an entire program.”
Trial Br. 11.
(2022).
(citing Biden v. Texas, 597 U.S. 785, 808–09
They are correct -– this is worse.
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The pronouncements of HHS and NIH in the Challenged
Directives are consistent: they are final agency action on their
evolving “eradication” of DEI, gender identity, and other topics
ostensibly under the Executive Orders as quickly as possible.
While the President is not typically subject to the APA,
Franklin v. Massachusetts, 505 U.S. 788, 801 (1992), the
agencies implementing his orders certainly are.
New York v.
Trump, 133 F.4th 51, 70 n.17 (1st Cir. 2025) (“[T]he District
Court did not review the President's actions for consistency
with the APA.
Rather, it reviewed—and ultimately enjoined—the
Agency Defendants’ actions under the Executive Orders.”).
Indeed, “[t]he APA contains no exception for agency actions . .
. that carry out an executive order.”
Orr v. Trump, No. 1:25-
CV-10313-JEK, 2025 WL 1145271, at *15 (D. Mass. Apr. 18, 2025)
(Kobick, J.).
B.
The Administrative Procedure Act
“[F]ederal courts do not exercise general oversight of the
Executive Branch; they resolve cases and controversies
consistent with the authority Congress has given them.”
Trump
v. Casa, Inc., No. 24A884, 2025 WL 1773631, at *15 (U.S. June
27, 2025).11
Congress has provided such authority, in part,
Nor should it. As my colleague Chief Judge McConnell of
the District of Rhode Island recently wrote about our system of
government:
11
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under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701
et seq.
Specifically, the APA provides that any “person
suffering legal wrong because of agency action, or adversely
affected or aggrieved by agency action within the meaning of a
relevant statute, is entitled to judicial review thereof.”
U.S.C. § 702.
5
It acts “as a check upon administrators whose
zeal might otherwise have carried them to excesses not
contemplated in legislation creating their offices,”
Loper
Bright Enters. v. Raimondo, 603 U.S. 369, 391 (2024) (quoting
United States v. Morton Salt Co., 338 U.S. 632, 644 (1950)), and
“sets forth the procedures by which federal agencies are
accountable to the public and their actions subject to review by
the courts,” Department of Homeland Sec. v. Regents of the Univ.
Our founders, after enduring an eight-year war
against a monarch's cruel reign from an ocean away,
understood too well the importance of a more balanced
approach to governance. They constructed three coequal branches of government, each tasked with their
own unique duties, but with responsibilities over the
other branches as a check in order to ensure that no
branch overstepped their powers, upsetting the balance
of the fledgling constitutional republic. See
Kilbourn v. Thompson, 103 U.S. 168, 191 (1880). These
concepts of “checks and balances” and “separation of
powers” have been the lifeblood of our government,
hallmarks of fairness, cooperation, and representation
that made the orderly operation of a society made up
of a culturally, racially, and socioeconomically
diverse people possible.
New York v. Trump, 769 F. Supp. 3d 119, 127–28 (D.R.I. 2025).
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of Cal., 591 U.S. 1, 16 (2020) (quoting Franklin v.
Massachusetts, 505 U.S. 788, 796 (1992)).12
Broadly, the APA
establishes a rebuttable “presumption of judicial review [for]
one ‘suffering legal wrong because of agency action.’”
Id.
(alteration in original) (quoting Abbott Lab’ys v. Gardner, 387
U.S. 136, 140 (1967)).
12
The rebuttal of this presumption is made
Section 706 provides in pertinent part:
To the extent necessary to decision and when
presented, the reviewing court shall decide all
relevant questions of law, interpret constitutional
and statutory provisions, and determine the meaning or
applicability of the terms of an agency action. The
reviewing court shall—
(1)
compel agency action unlawfully withheld or
unreasonably delayed; and
(2)
hold unlawful and set aside agency action, findings,
and conclusions found to be—
(A)
arbitrary, capricious, an abuse of discretion, or
otherwise not in accordance with law;
(B)
contrary to constitutional right, power,
privilege, or immunity;
(C)
in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right;
. . . .
In making the foregoing determinations, the court
shall review the whole record or those parts of it
cited by a party, and due account shall be taken of
the rule of prejudicial error.
5 U.S.C. § 706.
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“by a showing that the relevant statute ‘preclude[s]’ review, §
701(a)(1), or that the ‘agency action is committed to agency
discretion by law,’ § 701(a)(2).”13
Id. at 17.
The first
exception is self-explanatory, and the Supreme Court has read
the second exception “quite narrowly,” applying “it to those
rare ‘administrative decision[s] traditionally left to agency
discretion.’”
Id. (alteration in original) (first quoting
Weyerhaeuser Co. v. United Staes Fish & Wildlife Serv., 586 U.S.
9, 23 (2018); and then quoting Lincoln v. Vigil, 508 U.S. 182,
191 (1993));
Department of Com. v. New York, 588 U.S. 752, 772
(2019) (“[W]e have read the § 701(a)(2) exception for action
committed to agency discretion ‘quite narrowly, restricting it
to “those rare circumstances where the relevant statute is drawn
so that a court would have no meaningful standard against which
to judge the agency's exercise of discretion.”’” (quoting
Weyerhaeuser Co., 586 U.S. at 23)).
Examples of decisions
traditionally left to agency discretion include “a decision not
to institute enforcement proceedings, or a decision by an
13
Section 701 provides in pertinent part:
(a) This chapter applies, according to the provisions
thereof, except to the extent that-(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by
law.
5 U.S.C. § 701(a).
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intelligence agency to terminate an employee in the interest of
national security.”
New York, 588 U.S. at 772 (citations
omitted).
C.
The 706(2)(A) Claims –- Arbitrary and Capricious
(‘10787 Action Count I, ‘10814 Action Count III)
Section 706(2)(A) of the APA “instructs reviewing courts to
set aside agency action that is ‘arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with law.’”
at 771 (quoting 5 U.S.C. § 706(2)(A)).
Id.
“An agency action
qualifies as ‘arbitrary’ or ‘capricious’ if it is not
‘reasonable and reasonably explained.’”
Ohio v. Environmental
Prot. Agency, 603 U.S. 279, 292 (2024) (quoting Federal Commc’ns
Comm’n v. Prometheus Radio Project, 592 U.S. 414, 423 (2021)).
Review by the Court under the arbitrary or capricious
standard of Section 706(2)(A) is narrow, because all that is
“required [is for] agencies to engage in ‘reasoned
decisionmaking.’”
Regents of the Univ. of Cal., 591 U.S. at 16
(quoting Michigan v. Environmental Prot. Agency, 576 U.S. 743,
750 (2015)) (emphasis added).
To be sure, this Court may not
“substitute its judgment for that of the agency,” but rather
“must ensure, among other things, that the agency has offered ‘a
satisfactory explanation for its action[,] including a rational
connection between the facts found and the choice made.’”
Ohio,
603 U.S. at 292 (alteration in original) (first quoting Federal
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Commc’ns Com. v. Fox Television Stations, Inc., 556 U.S. 502,
513 (2009); and then quoting Motor Vehicle Mfrs. Ass’n of United
States, Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983)).
Said another way, this Court’s review “simply ensures
that the agency has acted within a zone of reasonableness and,
in particular, has reasonably considered the relevant issues and
reasonably explained the decision.”
Prometheus Radio Project,
592 U.S. at 423.
“Generally, an agency decision is arbitrary and capricious
if ‘the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or
is so implausible that it could not be ascribed to a difference
in view or the product of agency expertise.’ ” Sierra Club v.
United States Dep't of the Interior, 899 F.3d 260, 293 (4th Cir.
2018) (quoting Motor Vehicle Mfrs. Assn. of United States, Inc.
v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct.
2856, 77 L.Ed.2d 443 (1983)).
“Determining whether an agency
action is ‘reasonable and reasonably explained’ is ‘measured by
what [the agency] did, not by what it might have done.’”
Green
& Healthy Home Initiatives, Inc. v. Env't Prot. Agency, No. 25CV-1096-ABA, 2025 WL 1697463, at *20 (D. Md. June 17, 2025) SEC
v. Chenery Corp., 318 U.S. 80, 93-94 (1943).
[84]
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conclusory statements will not do; an ‘agency's statement must
be one of reasoning.’” Amerijet Int'l, Inc. v. Pistole, 753 F.3d
1343, 1350 (D.C. Cir. 2014)(quoting Butte Cnty., Cal. v. Hogen,
613 F.3d 190, 194 (D.C.Cir.2010).
This Court, is “ordinarily limited to evaluating the
agency's contemporaneous explanation in light of the existing
administrative record.”
New York, 588 U.S. at 780.
In the
usual course, this is because “further judicial inquiry into
‘executive motivation’ represents ‘a substantial intrusion’ into
the workings of another branch of Government and should normally
be avoided.”
Id. at 781 (quoting Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977)).
Indeed, this Court may neither “reject an agency’s stated
reasons for acting simply because the agency might also have had
other unstated reasons” nor “set aside an agency’s policymaking
decision solely because it might have been influenced by
political considerations or prompted by an Administration’s
priorities.”
Id.
This general rule recognizes the reality that
“[a]gency policymaking is not a ‘rarified technocratic process,
unaffected by political considerations or the presence of
Presidential power.’”
Id. (quoting Sierra Club v. Costle, 657
F.2d 298, 408 (D.C. Cir. 1981)).
Agency “decisions are
routinely informed by unstated considerations of politics, the
legislative process, public relations, interest group relations,
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foreign relations, and national security concerns (among
others).”
Id.
All that being said, while the Court’s “review is
deferential,” it is certainly “‘not required to exhibit a
naiveté from which ordinary citizens are free.’”
Dep't of Com.
v. New York, 588 U.S. 752, 785 (2019) (quoting United States v.
Stanchich, 550 F.2d 1294, 1300 (2nd Cir 1977) (Friendly, J.)).
The Public Officials argue as one of their reasons
“[t]he
change in democratically accountable leadership with different
priorities is not a post hoc rationalization; it is historical
fact” and that “[w]ith a new administration comes an appropriate
opportunity to assess and reassess the agency’s activities.”
10787 Action, Defs. Resp. Trial Br. 4, ECF
No. 111.
True
enough, but what the Public Officials fail to appreciate is that
they have to work within the confines of the law.
That is, a
new administration certainly is entitled to make changes -– even
unpopular or unwise changes.
What it cannot do is undertake
actions that are not reasonable and not reasonably explained.
This is where the Public Officials miss the mark.
Even under
this narrow scope of review, the Public Officials’ actions as
evidence under the Challenged Directives are breathtakingly
arbitrary and capricious.
A careful review of the Administrative Record confirms to
this Court what Justice Jackson wondered aloud three months ago
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(albeit from a different agency allegedly doing similar things):
that there is no reasoned decision-making at all with respect to
the NIH’s “abruptness” in the “robotic rollout” of this granttermination action.
Department of Education v. California, 145
S.Ct. 966, 975-76 (Jackson, J. dissenting); see also Thakur v.
Trump, No. 25-CV-04737-RFL, 2025 WL 1734471, at *14 (N.D. Cal.
June 23, 2025) (“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.”).
The Court “cannot ignore the disconnect between the
decision made and the explanation given.”
785.
New York, 588 U.S. at
Based upon a fair preponderance of the evidence and on the
sparse administrative record, the Court finds and rules that HHS
and, in turn NIH, are being force-fed unworkable “policy”
supported with sparse pseudo-reasoning, and wholly unsupported
statements.
Starting with DEI, the record is completely devoid of a
definition.
This Court has been transparent on this issue, see
American Pub. Health Assn. v. Natl. Institutes of Health, No. CV
25-10787-WGY, 2025 WL 1548611, at *12 (D. Mass. May 30, 2025),
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yet at trial the Public Officials can point only to the
identification of DEI, but not the definition of DEI:
R. 3226; Tr. 58-59, ECF No. 156 (citing R. 3226).
autological concept.
It is not an
The Court questioned the Public Officials’
counsel in closing arguments: “So that’s as close to a
definition [of DEI] as we’ve got?”, to which the Public
Officials’ counsel responded: “That is the agency’s reasoning.”
Id.
The Public Officials’ counsel’s response while
unsatisfactory in the sense that one would assume that DEI would
be defined somewhere, was accurate and responsive.14
The Public
Officials simply have no definition of DEI.
How, then, can the Public Officials act on “DEI” if there
is no operative definition of “DEI”?
The answer is plain: they
cannot, at least within the confines of the APA.
See Firearms
Regul. Accountability Coal., Inc. v. Garland, 112 F.4th 507, 523
The Court observes the Public Officials’ counsel have
been consistent and responsive to this Court on this issue.
Id.; see also, May 22, 2025 Hrg Tr. 19-20, ECF No. 82;
14
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(8th Cir. 2024) (rejecting as arbitrary and capricious an agency
standard that relies on circular reasoning because it “allow[ed]
the ATF to reach any decision is wish[ed] only looking to
specific evidence of community misuse [of a weapon] while
ignoring any other examples of the community’s compliant use”).
Reliance on an undefined term of DEI (or any other category) “is
arbitrary and capricious because it allows the [Public
Officials] to arrive at whatever conclusion it wishes without
adequately explaining the standard on which its decision is
based.”
Id. at 525 (cleaned up).
Unfortunately, the Public
Officials did just that.
The Court need not delve deeply into the rudderless EOs
concerning DEI: they do not even attempt to define DEI, but
instead set it up as some sort of boogeyman.
This lack of
clarity was (and is), in the first instance, wholly unfair to
the career-HHS and NIH personnel, which must attempt to “align”
themselves with the Executive through direction by partisan
appointed public officials.
Without a definition of DEI, they
embarked on a fool’s errand resulting in arbitrary and
capricious action.
Then-Acting Secretary of Health and Human Services Dr.
Dorothy Fink, picked up the mantle first in the Secretarial
Directive, equating without any stated-basis still-undefined DEI
with “initiatives that discriminate on the basis of race, color,
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religion, sex, national origin, or another protected
characteristic.”
R. 5 (emphasis added).
Further, she claims
that “[c]ontracts and grants that support DEI and similar
discriminatory programs can violate Federal civil rights law and
are inconsistent with the Department's policy of improving the
health and well-being of all Americans.”
What wordsmithing!
Id. (emphasis added)
Of course discriminatory programs, or
initiatives that discriminate, can violate federal laws, but
there is absolutely nothing in the record that demonstrates this
is a reasonable statement in the context of DEI -- again
undefined -- nor are her statements reasonably explained at all.
The statement, respectfully, is utterly meaningless.
On February 13, 2025, the then-NIH Deputy Director of
Extramural Research, Dr. Lauer, who provided supposed guidance
with respect to still-undefined DEI, using the language of HHS,
lumped in “DEI” with “initiatives that discriminate on the basis
of race, color, religion, sex, national origin, or another
protected characteristic” and advised that if the “sole purpose”
of the grants etc. “supports DEI activities” – again undefined –
- “then the award must be fully restricted.” R. 16.
Again, this
memorandum and the lack of a definition of DEI or what
supporting DEI activities reveals a reluctance to engage.
Indeed, though not determinative, Dr. Lauer resigned from a long
career in government service the same day he penned the February
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13, 2025 memorandum, effective Valentine’s Day.
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Notably, his
successor, Ms. Bundesen lasted only 3 weeks after which she too
resigned from government service as well.
While the Court makes
no finding as to Dr. Lauer’s or Ms. Bundesen’s motivations or
reasons for resigning, it is not lost on the Court that
oftentimes people vote with their feet.15
Next, on February 21, 202k, Dr. Fink’s appointee, Acting
Director Matthew Memoli took the reins.
This time, there is
evidence that HHS provided him with some circular and
nonsensical boilerplate language that was used almost verbatim
later on in the grant termination letters.
That aside, Dr.
Memoli tripled down on the DEI mystery, and added -- in a truly
hold-my-beer-and-watch-this moment -- “gender identity” to the
mix.
The similar nonsensical phrasing appears.
Like his boss at HHS, and whoever drafted the Executive
Orders for that matter, Dr. Memoli can certainly identify
“diversity, equity and inclusion (DEI),” but is unable (or
unwilling) to define it.
Instead, he follows Dr. Fink’s lead,
relegating it to a category “low-value and off-mission research
The lack of any demonstrable pushback on these
nonsensical Challenged Directives in the Administrative Record
belies the tremendous bureaucratic pressure at play here. It is
palpable. While HHS and the NIH bureaucrats are scientists at
heart, they are trying to keep their jobs. Scientists cling to
reason, not whim –- merit, not loyalty.
15
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programs”, including not only DEI, but also undefined gender
identity.
Dr. Memoli then goes back in time, attempting to state that
even though his “description of NIH's mission is consistent with
recent Executive Orders issued by the President,” his directive
is “based on my expertise and experience; consistent with NIH's
own obligation to pursue effective, fiscally prudent research;
and pursuant to NIH authorities that exist independently of, and
precede, those Executive Orders.”
See Memoli Directive.
While
intriguing, the regurgitation of the HHS language belies this
separation.
DEI.
Indeed, his description obscures any definition of
The first sentence is untethered to DEI, and is true in
the abstract:
“Research programs based primarily on artificial and nonscientific categories, including amorphous equity objectives,
are antithetical to the scientific inquiry, do nothing to expand
our knowledge of living systems, provide low returns on
investment, and ultimately do not enhance health, lengthen life,
or reduce illness.”
Id.
Simply put, non-scientific research is
non-scientific research, and should not be an NIH priority.
Then Dr. Memoli goes on, “Worse, DEI studies are often used
to support unlawful discrimination on the basis of race and
other protected characteristics, which harms the health of
Americans.”
Id.
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Apparently, by using the transition
“worse,” the term “DEI studies” –- again DEI is undefined -– are
somehow inherently “artificial and non-scientific.”
Without
citing a single example, Dr. Memoli claims that DEI studies are
“often used in support of unlawful discrimination on the basis
of race and other protected characteristics,” which he connects
with harm to the health of Americans.
So, is it the DEI studies
that are the problem or how others use them?
Who knows.
There
is not a shred of evidence supporting any of these statements in
the record.
Dr. Memoli then transitions to “gender identity”, the next
boogeyman: “Likewise, research programs based on gender identity
are often unscientific, have little identifiable return on
investment, and do nothing to enhance the health of many
Americans.
Many such studies ignore, rather than seriously
examine, biological realities.”
R. 3821 (emphasis added).
There is not a shred of evidence in the Administrative Record
backing this up either.
Phrases like “often unscientific” and
“many studies ignore” are unsupported with anything other than
(apparently) Dr. Memoli’s experience.
Ironically, these kinds
of phrases would never survive peer review.
HHS’s and the NIH’s implementation of the EOs is based
literally upon nothing but an undefined term.
Without defining
it, DEI becomes whatever DEI means to the Public Officials
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untethered to anything.
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This is not reasoned decision-making,
in fact it is just the opposite.
reasonably explained.
Filed 07/02/25
It is neither reasonable, nor
Indeed, “the fact that an agency's
actions were undertaken to fulfill a presidential directive does
not exempt them from arbitrary-and-capricious review.”
Kingdom
v. Trump, No. 1:25-CV-691-RCL, 2025 WL 1568238, at *10 (D.D.C.
June 3, 2025).
The HHS and, in turn the NIH’s, best possible
(but losing) argument is on this record that they were simply
following orders of the Administration (or DOGE), but this is an
argument that simply falls flat.
Id. (“[I]f an agency could
avoid the need to justify its decisions simply by gesturing to
an Executive Order and claiming that it was just following the
President's directions, the President could unilaterally
eviscerate the judicial oversight that Congress contemplated in
passing the APA simply by issuing a carbon-copy executive order
mandating that an agency act in a particular way before it does
so.”).
That is essentially what has been done here.
This is
evidenced by the lack of any reasoned decisionmaking at all in
the Administrative Record.
The Public Officials have decided
that they are going to “eradicate” something that they cannot
define.
That agency action is arbitrary and capricious.
Pivoting to gender affirming care, vaccine hesitancy, COVID,
Climate Change and Influencing Public Opinion, these terms
evolve in the Priorities Directive, evidence that the NIH was
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trying to figure it out, all the while being tasked with using
those same terms to wipe out grants.
reasonable explanation in the record.
None of these terms have a
The Public Officials
“must show that there are good reasons for the new policy. . . .
that the new policy is permissible under the statute, that there
are good reasons for it, and that the agency believes it to be
better.” F.C.C. v. Fox Television Studios, 556 U.S. 502, 515
(2009).
In plain terms, “this means that the agency need not
always provide a more detailed justification than what would
suffice for a new policy created on a blank slate.” Id.
It must
do more when, as here, “for example, its new policy rests upon
factual findings that contradict those which underlay its prior
policy; or when its prior policy has engendered serious reliance
interests that must be taken into account.”
Id.
The HHS and
NIH have not done so here, and with the exception of a scintilla
of evidence with respect to potential disruptions of withdrawn
NOFOs, there is no evidence that they even considered the
reliance interests that naturally inure to NIH grant process.
It is “arbitrary or capricious to ignore such matters.” Id.
The
Public Officials “fail[ ] to provide an intelligible
explanation,” which “amount[ ] to a failure to engage in
reasoned decisionmaking ...” Constellation Mystic Power, LLC v.
FERC, 45 F.4th 1028, 1057 (D.C. Cir. 2022) (quoting FPL Energy
Marcus Hook, L.P. v. FERC, 430 F.3d 441, 448 (D.C. Cir. 2005);
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see Thakur, 2025 WL 1734471, at *15 (“The terminated grants were
being used to pay Plaintiffs’ and their staff's salaries, and to
fund graduate student programs, field research, and community
outreach.
These facts indicate significant reliance interests
that cannot simply be ignored.”).
As the Court has already ruled, the Court -- relying on the
Certified Administrative Record -- rules that on a fair
preponderance of the evidence that the Challenged Directives are
arbitrary and capricious under Section 706(2)(A), as are the
concomitant grant terminations, which action are all set aside
and vacated.
D.
Section 706(2)(A) Claims -- Not in Accordance
with Law (‘10787 Action Count II; ‘10814 Action
Count II)
The APA claim that agency action is “not in accordance with
law” is a subpart of Section 706(2)(A).
In reviewing this claim
“a reviewing court must uphold an agency's decision if it is:
(1) devoid of legal errors; and (2) “supported by any rational
review of the record.”
New York v. Trump, No. 25-CV-39-JJM-PAS,
2025 WL 715621, at *9 (D.R.I. Mar. 6, 2025) (quoting Mahoney v.
Del Toro, 99 F.4th 25, 34 (1st Cir. 2024)).
The Plaintiffs attack the Public officials claim that 2
C.F.R. § 200.340(a)(4) operates as a trump card and permits
termination of and award that “no longer effectuates the
programs goals or agencies priorities.”
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Section 340 is part of OMB’s guidance, and that is all that
is –- nonbinding guidance.
See 2 C.F.R. §1.105(b) (“Publication
of the OMB guidance in the CFR does not change its nature—it is
guidance, not regulation.”).
That provision falls under the
section entitled “Remedies for Noncompliance.”
provides “remedies for noncompliance.”
Section 200.339
2 C.F.R. §
That provision provides in pertinent part:
(a)
The Federal award may be terminated in part
or its entirety as follows:
(1)
By the Federal agency or pass-through entity
if the recipient or subrecipient fails to
comply with the terms and conditions of the
Federal award;
(2)
By the Federal agency or pass-through entity
with the consent of the recipient or
subrecipient, in which case the two parties
must agree upon the termination conditions.
These conditions include the effective date
and, in the case of partial termination, the
portion to be terminated;
(3)
By the recipient or subrecipient upon
sending the Federal agency or pass-through
entity a written notification of the reasons
for such termination, the effective date,
and, in the case of partial termination, the
portion to be terminated. However, if the
Federal agency or pass-through entity
determines that the remaining portion of the
Federal award will not accomplish the
purposes for which the Federal award was
made, the Federal agency or pass-through
entity may terminate the Federal award in
its entirety; or
(4)
By the Federal agency or pass-through entity
pursuant to the terms and conditions of the
Federal award, including, to the extent
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authorized by law, if an award no longer
effectuates the program goals or agency
priorities.
2 C.F.R. § 200.340(a).
That provision requires that an agency
“must clearly and unambiguously specify all termination
provisions in the terms and conditions of the Federal award.”
Id. at § 200.340(b).
An agency terminating an award “must
provide written notice of termination to the recipient or
subrecipient . . . [which] should include the reasons for
termination, the effective date, and the portion of the Federal
award to be terminated, if applicable.
2 C.F.R. § 200.341
Section 200.340 is an OMB Regulation that provides only guidance
to all agencies, and is not binding.
See 2 C.F.R. §1.105(b)
(“Publication of the OMB guidance in the CFR does not change its
nature -- it is guidance, not regulation.”)
As an initial matter, HHS’s adoption of the regulation is
not effective until October 2025; accordingly, the regulation is
wholly inapplicable here.
See Health and Human Services
Adoption of the Uniform Administrative Requirements, Cost
Principles, and Audit Requirements for Federal Awards, 89 FR
80055-01 (“HHS will adopt all of the rest of 2 CFR part 200 with
an effective date of October 1, 2025.”).
Instead, a different
statue, 45 C.F.R. § 75.372(a) (2024) allows for unilateral
termination only where there is a failure “to comply with the
terms and conditions of the award” or “for cause.” 45 C.F.R. §
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Plaintiffs argue that “the plain language
of the regulation mandates that these are the exclusive
conditions under which HHS and its sub-agencies may terminate a
grant.”
ECF 103 28 (citing Pol’y & Rsch., LLC v. United States
Dep't of Health & Human Servs., 313 F. Supp. 3d 62, 76 (D.D.C.
2018); Healthy Teen Network v. Azar, 322 F. Supp. 3d 647, 651
(D. Md. 2018).
That in and of itself demonstrates legal error.
Simply put, the Public Officials cannot rely on a regulation
that does not yet apply to their respective agencies in their
template.
But even if it applied, under the cited regulation, an
agency can terminate an award “pursuant to the terms and
conditions of the Federal award, including, to the extent
authorized by law, if an award no longer effectuates the program
goals or agency priorities.” 2 C.F.R. § 200.340 (emphasis
added).
This is a distinction with a difference, because ““this
regulation cannot authorize actions that contravene statutory
requirements, nor does it relieve [the Public Officials] of
[their] duty to follow the law.” Pacito v. Trump, No. 2:25-CV255-JNW, ––– F.Supp. 3d ––––, ––––, 2025 WL 893530, at *9 (W.D.
Wash. Mar. 24, 2025) (quoting 2 C.F.R. § 200.340(a)(4)).
The Public Officials counter that the regulation has been
incorporated into the terms and conditions of the grantees’
awards.
Even if the regulation applied as a contractual term,
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whether the “award no longer effectuates the programs goals or
agency priorities” can still be challenged under the APA where
the underlying reasons violate the APA.
See Thakur v. Trump,
No. 25-CV-04737-RFL, 2025 WL 1734471, at *14 (N.D. Cal. June 23,
2025) (“2 C.F.R. § 200.340, to the extent it applies, does not
alter the requirement under the APA that Defendants must provide
a reasoned decision for their termination.”); American Ass'n of
Colls. for Tchr. Educ. v. McMahon, 770 F. Supp. 3d 822, 851 (D.
Md. 2025 (ruling that even if termination letters invoked a
valid reason to terminate under 2 C.F.R. § 200.340, APA claims
survived because the letters “fail[ed] to provide [the
plaintiffs] any workable, sensible, or meaningful reason or
basis for the termination of their awards”).
Reliance on these
inapplicable regulation as basis for template letter
terminations in conjunction with meaningless descriptions is
contrary to law under Section 706(2)(A) of the APA.
E.
Section 706(2)(C) Claims -- In excess of
Statutory Authority (‘10787 Action Count III;
‘10814 Action Count I)
An APA action brought under Section 706(2)(C), challenges
agency action “in excess of statutory jurisdiction, authority,
or limitations, or short of statutory right.”
Id.
The
“[C]ourt[] must exercise [its] independent judgment in deciding
whether an agency has acted within its statutory authority.”
Loper Bright, 603 U.S. at 412.
“[T]he [C]ourt fulfills [its]
[100]
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