Cases & Developments

Memorandum and Order Granting in Part and Denying in Part Defendants’ Motion to Dismiss. Plaintiffs, the American Public Health Association, IBIS Reproductive Health, International Union, United Automobile, Aerospace, and Agricultural Implement Workers along with several researchers from Harvard University allege that the National Institutes of Health (NIH) Directives that were drafted to terminate a large number of grants and refuse to consider certain categories of pending grant applications is in conflict with constitutional, statutory, and regulatory requirements. Plaintiffs filed for a motion for preliminary injunction on April 2, 2025, and a hearing was held on May 22, 2025. Plaintiffs alleged that NIH failed to state any proper ground for termination under governing law, and as a result, plaintiffs suffered extensive harm, including loss of research, jobs, staff, and income. Plaintiffs also alleged over $2.4 billion is at stake from recent grant purges, $1.3 billion wasted from projects that were stopped midstream, and $1.1 billion plaintiffs and others acted in reliance on, has now been revoked. Plaintiffs alleged that defendants’ actions violate the Administrative Procedure Act (APA) as their actions are arbitrary and capricious as the termination letters failed to explain how any specific study failed to meet agency priorities and was merely boilerplate and conclusory language. Finally, plaintiffs alleged that defendants’ actions are in violation of separation of powers and exceed statutory authority, and are contrary to their constitutional rights as the directives are unlawfully vague. Defendants countered plaintiffs’ motion for preliminary injunction with a motion to dismiss all counts. The Court granted defendants’ motion to dismiss on plaintiffs’ void-for-vagueness claim, finding that plaintiffs cite to cases applying the void-for-vagueness doctrine to facially similar but factually distinguishable cases, all of which involve threatened penalties for violating vague standards. The Court also granted defendants’ motion to dismiss plaintiffs’ separation of powers claim due to plaintiffs’ referencing their APA claim on the count, reasoning that their claim is better addressed by the APA claim rather than the separation of powers claim. In agreeing with plaintiffs that defendants’ explanations for the grant terminations are “conclusory and vague” the Court denied defendants’ motion to dismiss plaintiffs’ APA claim.

Complaint for Declaratory and Injunctive Relief. Plaintiffs, the State of New York, State of Hawai‘i, State of California, State of Colorado, State of Connecticut, State of Delaware, State of Illinois, State of Maryland, Commonwealth of Massachusetts, State of Nevada, State of New Jersey, State of New Mexico, State of Oregon, State of Rhode Island, State of Washington, and State of Wisconsin allege that defendants, the National Science Foundation (NSF) and Brian Stone in his official capacity as Acting Director of the NSF acted unlawfully in announcing that NSF adopted new priorities and that “research projects with more narrow impact limited to subgroups of people based on protected class or characteristics do not effectuate NSF priorities.” Additionally, NSF issued termination notices to projects in plaintiff states that (1) seek to increase STEM participation by women, minorities, and people with disabilities; (2) study misinformation; and (3) address environmental justice. Finally, NSF announced that it would not cover indirect costs at a rate higher than “15% of modified total direct costs” for grants and cooperative agreements awarded to postsecondary institutions. Plaintiffs contend that if allowed to proceed, defendants’ actions will devastate critical STEM research at institutions of higher education. Plaintiffs also maintain that no termination notice alleged that projects operated in a way that violated any law, and NSF has explicitly disclaimed any basis to terminate the grants other than its decision to depart from Congressionally mandated priorities. Plaintiffs claim defendants failed to consider several important aspects of the issues before them, including plaintiff States’ reliance interests in the Congressionally mandated NSF policy that NSF has followed for decades, and if defendants could have adopted less extreme measures to effectuate their new “priorities.” Plaintiffs further contend that no law permits NSF to categorically refuse to sponsor broad areas of research pursuant to shifts in agency priorities when they contradict Congressionally mandated priorities. Plaintiffs allege that defendants’ actions violate the APA as they are arbitrary and capricious and contrary to law; violate Separation of Powers and the Take Care Clause; and are ultra vires Executive Action. Plaintiffs ask that the court find defendants’ actions unlawful and vacate the “Priority Directive” and the “Indirect Cost Directive;” enter a declaratory judgment finding that both directives and their implementation are invalid, arbitrary and capricious, contrary to law, ultra vires, and violative of the Constitution; issue preliminary and permanent injunctive relief barring implementation of the directives, or otherwise modifying negotiated indirect cost rates except as expressly permitted by statute and regulation.