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Latest Cases & Developments
Date:
NIH Notice on Term and Condition Change (Apr. 21, 2025)
The National Institutes of Health (NIH) published a Notice to the research community of a new Civil Rights term and condition that modifies the current terms and conditions for all NIH grants, cooperative agreements, and other transaction (OT) awards. The term applies prospectively to new, renewal, supplement, or continuation awards issued on or after the date of the Notice. The new term requires recipients to comply with all applicable Federal anti-discrimination laws material to the government’s payment decisions for purposes of 31 U.S.C. §372(b)(4). Specifically, recipients must certify that they do not and will not during the term of the financial assistance award, operate any programs that advance or promote “diversity, equity, and inclusion” (DEI), “diversity, equity, inclusion, and accessibility” (DEIA), or discriminatory equity ideology in violation of Federal anti-discrimination laws; and that they will do not and will not for the duration of the term of the award, engage in a discriminatory prohibited boycott (discriminatory equity ideology has the meaning set forth in Section 2(b) of Executive Order 14190 of January 29, 2025; discriminatory prohibited boycott means refusing to deal, cutting commercial relations, or otherwise limiting commercial relations specifically with Israeli companies or with companies doing business in or with Israel or authorized by, licensed by, or organized under the laws of Israel to do business.) Finally, the Notice states that NIH reserves the right to terminate financial assistance awards and recover all funds if recipients, during the term of the award, operate any program in violation of Federal anti-discrimination laws or engage in a prohibited boycott.
Topics:
Contracts | Grants, Contracts, & Sponsored ResearchDate:
U.S. Department of Education to Begin Federal Student Loan Collections (Apr. 21, 2025)
The U.S. Department of Education Office of Federal Student Aid (the Department) announced that it will resume collections of its defaulted Federal student loan portfolio beginning May 5, 2025 – the first time since March 2020. It states that resuming collections protects taxpayers from shouldering the cost of Fderal student loans that borrowers willingly undertook to finance their postsecondary education. Additionally, the resumed collections will be paired with a comprehensive communications and outreach campaign to ensure borrowers understand how to return to repayment or get out of default. Defaulted borrowers will be contacted urging them to contact the Default Resolution Group to make a monthly payment, enroll in an income-driven repayment plan, or sign up for loan rehabilitation. Later in the summer, the Department will send the required notices beginning administrative wage garnishment. The Department will also launch an enhanced Income-Driven Repayment (IDR) process, simplifying the time that it will take borrowers to enroll in IDR plans and eliminating the need for borrowers to recertify their income every year. Finally, the Department intends to enlist its partners – states, institutions of higher education, financial aid administrators, college access and success organizations, third-party servicers, and other stakeholders – to assist in the campaign.
Topics:
Financial Aid, Scholarships, & Student Loans | StudentsDate:
President and Fellows of Harvard College v. U.S. Department of health and Human Services (Apr. 21, 2025)
Complaint for Declaratory and Injunctive Relief. Plaintiff, the President and Fellows of Harvard College allege that defendants, the U.S. Department of Health and Human services, the National Institutes of Health, Robert F. Kennedy, Jr., U.S. Department of Justice, Pamela J. Bondi, U.S. Department of Education, Linda M. McMahon, U.S. General Services Administration, Stephen Ehikian, U.S. Department of Energy, Christopher A. Wright, U.S. National Science Foundation, Sethuraman Panchanathan, U.S Department of Defense, Peter B. Hegseth, National Aeronautics and Space Administration, and Janet E. Petro have acted unlawfully by way of “withholding federal funding as leverage to gain control of academic decision making at Harvard.” Defendants announced that they were freezing $2.2 billion in multiyear grants and $60 million in multiyear contract value to plaintiff after plaintiff refused to comply with defendants’ conditions outlined in letters sent on April 3 and 11, 2025. Plaintiff alleges that defendants’ intentions are to “allow the Government to micromanage your academic institution or jeopardize the institution’s ability to pursue medical breakthroughs, scientific discoveries, and innovative solutions.” Plaintiff contends that defendants’ action in withholding funding is a violation of the Administrative Procedure Act (APA) and defendants have violated the First Amendment, are acting in excess of their statutory and constitutional authority, are arbitrary and capricious, and failed to follow their own regulatory procedures, which required defendants to provide notice, attempt to secure compliance by voluntary means, provide an opportunity for hearing, make express findings on the record, and file with the Committees of the House and Senate that have legislative jurisdiction over the program(s) involved — none of which were done prior to Federal financial assistance being frozen. Plaintiff asked the court to declare defendants’ actions unconstitutional, postpone the effectiveness of the “Freeze Order” and any unconstitutional conditions in the April 3 and 11 letters, and finally, permanently enjoin defendants from violating plaintiff’s First Amendment rights, as well as from terminating, freezing, or refusing to grant or continue any Federal funding at issue without first complying with Federal law.
Topics:
Constitutional Issues | Contracts | First Amendment & Free Speech | Grants, Contracts, & Sponsored ResearchDate:
Pasula v. U.S. Department of Homeland Security (D.N.H. Apr. 18, 2025)
Class Complaint for Declaratory and Injunctive Relief. Plaintiffs, several students affected by defendants’ termination of F-1 student status and proposed class members allege that defendants, the U.S. Department of Homeland Security, the U.S. Immigration and Customs Enforcement (ICE), ICE’s Boston Field Office, ICE’s Manchester Subfield Office, Kristi Noem, and Todd Lyons unilaterally and unlawfully terminated plaintiffs’ F-1 student status. As of April 11, 2025, plaintiffs allege that at least 112 students’ F-1 status had been terminated based on Student and Exchange Visitor Information System (SEVIS) termination. Plaintiffs allege that the description of the SEVIS termination reason was changed from “failure to maintain status” to “other” which is a new category on the SEVIS website as of April 9, 2025. Plaintiffs allege that defendants’ actions are a violation of the Administrative Procedure Act (APA) as they are arbitrary and capricious and are a violation of the Due Process Clause of the Fifth Amendment. Plaintiffs ask that the Court assume jurisdiction over the matter; certify the case as a class action; declare that defendants’ termination of plaintiffs’ and class members’ F-1 student status violate the APA and plaintiffs’ Fifth Amendment due process rights and issue a preliminary and permanent injunction requiring defendants to reinstate the F-1 student status and corresponding SEVIS immigration record for all students at any education institutions in New Hampshire, Massachusetts, Maine, Rhode Island, and Puerto Rico who had their F-1 student status terminated and had their SEVIS immigration record correspondingly terminated.
Topics:
Immigration | International StudentsDate:
The National Science Foundation Updates on Priorities (Apr. 18, 2025)
The National Science Foundation (NSF) announced that awards that are not aligned with NSF’s priorities have been terminated, including but not limited to those on diversity, equity, and inclusion (DEI) and misinformation/ disinformation. In addition to the updated priorities, NSF also published a number of frequently asked questions (FAQ). The FAQ section addresses questions regarding the absence of an appeal or alternative dispute resolution process existing for the awards that have been terminated, project report requirements, cost reimbursement prior to the award termination date, working with Minority Serving Institutions, and protected characteristics.
Topics:
Contracts | Grants, Contracts, & Sponsored ResearchDate:
Cunningham v. Cornell University (Apr. 17, 2025)
Memorandum Opinion Reversing and Remanding. Plaintiffs, a class of current and former Cornell University employees who participated in the University’s retirement plans from 2010-2016, brought suit against the University and other plan fiduciaries alleging that defendants violated §1106(a)(1)(C) by causing the plans to engage in prohibited transactions for recordkeeping services. The Second Circuit found that “the language of §1106(a)(1) cannot be read to demand explicit allegation of ‘self-dealing or disloyal conduct.’” It held the exemptions to §1106(a)’s prohibited transactions contained in §1108 imposed additional pleading requirements, and the exemptions cannot be understood merely as affirmative defenses to the conduct proscribed in §1106(a). The Second Circuit split from the Eighth Circuit, which held that no additional pleading requirements beyond §1106(a)(1) apply to prohibited-transaction claims. Following the circuit split, the U.S. Supreme Court granted certiorari to decide whether a plaintiff can state a claim for relief by simply alleging that a plan fiduciary engaged in a transaction proscribed by §1106(a)(1)(C), or whether a plaintiff must plead allegations that disprove the applicability of the §1108(b)(2)(A) exemption. In reversing the Second Circuit holding, the unanimous Court concluded that plaintiffs need do no more than plead a violation of §1106(a)(1)(C). The Court found that the relevant part of Section 1106 includes three elements: (1) causing the plan to engage in a transaction; (2) that “constitutes…furnishings of…services”; (3) “between the plan and a party in interest.” The Court further reasoned that the proper method of proceeding is for the plaintiff to point to the transaction with the service provider, and for the service provider to point out any particular exemption that might protect it; if a §1108 exemption applies, the §1106(a)(1)(C) claim will ultimately fail.
Topics:
Employee Benefits | Employee Retirement Income Security Act (ERISA) | Faculty & StaffDate:
ACE Amicus Brief in Massachusetts v. Robert F. Kennedy Jr. (Apr. 17, 2025)
Amicus Brief from the American Council on Education (ACE) and several other higher education associations in Massachusetts v. Robert F. Kennedy Jr. The case challenges the National Institutes of Health’s (NIH) sudden cancellation of research grants that defendants claim no longer aligns with NIH’s priorities. The brief opposes blacklisting of research perceived to be connected to politically disfavored topics, as well as termination of hundreds of existing awards without explanation, notice, or adherence to legal process. In the brief, the associations warn that these actions threaten to destabilize the entire biomedical research system, and further underscore the severe consequences for institutions, researchers, and patients who participate in federally funded studies.
Topics:
Contracts | Grants, Contracts, & Sponsored Research
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