The Chief Steps In And The Supreme Court Joins the Fight -- Who Decides When Taxpayer Funds Are Spent? The Executive Branch v. District Judges

The Global Health Alliance litigation is a case study of passive-aggressive lawyering at its finest by DOJ which danced the Plaintiffs and Judge into a no-win situation.

There are two cases that have been consolidated in the District Court in Washington D.C, and both are subject to all the comments below. Each case has multiple plaintiffs, but case “captions” for them list “Global Health Council” as the lead plaintiff in one, and “AIDS Vaccine Advocacy Coalition” as the lead plaintiff in the other. Except where I specify otherwise, references to “Global” or the “cases” are meant as a collective reference to both cases and all the different plaintiffs in each case.

There are MANY twists and turns in the saga that is reflected in the dockets of the cases that are linked above.

The issue in both cases is the Trump Administration’s “blanket pause” on payments by the Treasury to fund grants/contracts coming out of USAID and/or the State Department. These are part of the foreign aid/assistance programs authorized by Congress to aid in the pursuit of U.S. foreign policy interests abroad. USAID and the State Department have thousands of employees worldwide whose job it is to administer these programs through both domestic and foreign contractors.

The cases are related to the case involving USAID employees being placed on paid leave when the pause in payments was announced. In moving to place thousands of workers on leave, the concern voiced by the new Administration was that a bona fide effort to evaluate the legitimacy of the spending by USAID could be undermined by USAID employees whose jobs might depend on the payments continuing. The union representing most of those workers filed suit to block the personnel moves.

Here is a basic timeline of events in the Global cases — some of these individual events are covered in more detail below. But seeing the sequence of events in chronological order can aid in understanding the inter-relationship of events to each other as explained in more detail below:

• Both complaints are filed late in the evening on February 10, 2025

• An application for a TRO was filed on February 11 — but only in the Global Health case.

• Both cases ended up — after some machinations — assigned to Judge Amir Ali on February 11, who consolidates them for handling. Judge Ali was confirmed only in November, 2024, and took the bench in D.C. on December 2, 2024.

• An application for a TRO was filed in the AIDS Vaccine case later in the day on February 12.

• Judge Ali sets a telephone conference for the afternoon of February 12 — before DOJ has an opportunity to file anything in response to either TRO application.

• Following the telephone hearing Judge Ali gave the government a few hours to file information that had been referenced during the hearing.

• On February 13 Judge Ali granted in part and denied in part the requested TRO, and entered a modified version of the proposed order filed by Global. The TRO — supposedly -- required USAID and the State Department to resume providing funding pursuant to grants and contracts that were subject to the “blanket pause” in spending ordered by the Trump Administration — basically ordering the Administration to not enforce the Executive Order’s key provisions.

• On February 18 the DOJ filed a Status Report regarding compliance with the TRO. It noted that USAID and the State Department were reviewing various grants and contracts pursuant to both the terms of those agreements as well as various statutory and regulatory authority to confirm the payments were justified. The Report noted that the Court’s TRO specifically authorized the Government to enforce contract terms both expressly in the agreements, and impliedly in the agreements based on legislative and regulatory mandates.

• On February 19 the Plaintiffs filed an “Emergency Motion for Contempt” based on the failure by the Government agencies to resume the distribution of funding pursuant to the TRO.

• On February 20, Judge Ali granted in part and denied in part the Emergency Motion. His order confirmed that the TRO did not restrain the Agencies’ “exercise of authorities under the law.” But he found the justification to be after-the-fact, and what the Agencies were actually doing was simply continuing the “blanket pause” on funding which the TRO had prohibited. He repeated that the blanket suspension of funding was to end, and the Agencies were to pay funds based on the existing grants and contracts for work already performed.

• On February 22, Judge Ali denied an application for a stay on his TRO pending appeal to the D.C. Circuit Court. The D.C. Circuit Court later dismissed the Notice of Appeal on the basis that a TRO is not an “appealable order” — the appeal would not be allowed until a ruling was entered on a Preliminary Injunction.

• On February 24, the Plaintiffs filed a “Motion to Enforce the TRO.” Judge Ali set a hearing via videoconference for 11:00 am on February 25.

• On February 25, during the course of the hearing, Judge Ali held that the Agencies had not complied with his TRO because funds had not been distributed to plaintiffs — and others — as ordered. He directed DOJ that agencies were to comply by 11:59 pm on January 26 — and compliance meant paying all outstanding invoices or funding draws pursuant to grants and/or contracts up through February 13, 2025.

• Later in the evening on February 25, the DOJ filed a Notice of Appeal, and applied to Judge Ali to stay his Order pending the outcome of the appeal. Judge Ali denied the stay request.

• Early in the evening on February 26 the D.C. Circuit Appeals Court dismissed the Notice of Appeal based on a finding that a TRO is not an appealable order. It left in place Judge Ali’s Order that USAID and the State Department pay out approximately $2 billion in grant and contracting funding by midnight.

• Prior to the dismissal by the Court of Appeal, and after not having heard from the Court of Appeal, the DOJ had filed a Request for Stay of Judge Ali’s order with the Supreme Court.

• At approximately 10:00 pm on February 26 — two hours before the deadline — Chief Justice Roberts stayed the Order of Judge Ali “pending further order…”. He gave the Global plaintiffs until 12:00 noon ET on February 28 to respond to the DOJ Request for a Stay.

Over the Course of 13 days — from the case being assigned to him on February 12 until his Order of February 25 — Judge Ali took it upon himself to determine that USAID and the State Department were required to send about $2 billion in taxpayer funds to third parties prior to their ever being a trial on the merits in the case.

Not just that, he made the determination prior to the allegations set forth in the complaints and various declarations were even tested for their truth or veracity.

Not just that, he ordered untold millions of dollars to be paid to entities who were not even parties to the litigation in his court. He treated all recipients of funds from USAID and/or the State Department as an unofficial “class”, with the assumption that all were equally aggrieved by the actions of the Trump Administration, and all had equally legitimate claims to continued funding.

Talk about failing “Judging 101.”

But, the nature and sequence of events leaves the unmistakeable impression that the attorneys from the Department of Justice Federal Programs Branch had danced him and the Plaintiffs right into a corner from which there was no escape once he was determined to “right the wrongs” that the Trump Administration was doing to the poor folks who had been promised this flow of money by the Biden Administration.

Now let’s take a look at some details about a few of the events set forth above.

The Assignment of the Cases To Judge Ali:

The USAID employee case was filed on February 6, 2025, and was assigned to District Judge Carl Nichols. The case number is 25-cv-00354. Judge Nichols initially entered a TRO blocking the USAID workers from being placed on paid leave because of safety concerns raised by the Plaintiffs in their complaint and in their motion for a TRO. After accepting the safety issues at face value to start, Judge Nichols eventually declined to enter an injunction after he determined that the safety concerns were overblown and/or could be easily mitigated by the Trump Admin. Judge Nichols’ case did not concern the recipients of USAID funding — only the decision by the Trump Admin. to put USAID employees on leave, a move that would make administering the grants and contracts far more difficult — as was later revealed to be the case in the Global cases.

Judge Nichols is a Trump appointee, considered one of the more cerebral judges on the District Court bench, and with a distinguished legal career litigating these specific kinds of civil actions both in private practice and during a period of time with DOJ.

I’m 100% certain — because it is always a consideration — that the attorneys in the Global cases did not want to draw Judge Nichols for their USAID cases too.

The case numbers in the two complaints in the “Global” cases are 25-cv-00400 (AIDS Vaccine) and 25-cv-00402 (Global Health). The “400” case was filed on February 10, 2025, and the “402” case was filed on February 11, 2025. Complaints such as these are filed electronically using the “Electronic Case Filing” system. The nearly sequential case numbers — 400 and 402 — showing the two cases were filed nearly back-to-back and leads me to suspect they were both filed around midnight on the February 10. The case in between, 25-cv-401, is Jones v. Trump, a unrelated case involving a Trump Administration change in Bureau of Prisons housing policy for transgender inmates.

The Jones case was also filed on February 10, 2025, meaning the Global Health case — “402” — was the first case filed on February 11, 2025.

When the filing party knows that two or more cases have similar or “related” subject matters and/or parties, the Local Rules of the Court require the filing of a “Related Case Notice.” This alerts the Clerk’s Office that consideration should be given to having “related” cases all assigned to one judge for consistency and to conserve judicial resources.

The "402” case docket shows a Related Case Notice filed on Feb. 11 — meaning the attorneys in that case knew about the “400” case even though they were filed at about the same time — highly suggestive of coordinated activity. That is not necessarily surprising though.

Later in the day of Feb. 11, the DOJ filed a Related Case Notice, informing the Court of the connection to the USAID Employee case before Judge Nichols.

The AIDS Vaccine case was filed prior to the Global Health case. Along with the Complaint, a Related Case Notice was filed advising the Court that the case was related to National Council of Non-Profits v. OMB, 25-cv-00239, which was among the first cases filed on January 28, 2025, challenging the OMB Memo which purported to implement a Trump Executive order freezing spending, but was not related to USAID or State Department spending. The Non-Profits case had no direct relationship to either AIDS Vaccine or Global Health other than the fact that both related to the spending pause ordered by the Trump Administration.

But the Non-Profits case had been assigned to another new Biden Appointee on the District Court, Judge Lauren AliKahn.

Presumably based on the Related Case Notice, the AIDS Vaccine case was also assigned to Judge AliKahn. Then, because of the Related Case Notice filed in the Global Health case, that case was assigned to Judge AliKahn.

You know who didn’t have a case assigned to him based on the Related Case Notice — Judge Nichols who already had an USAID case.

But Judge AliKahn didn’t see how the Global cases were “related” to her Non-Profits case. She issued a “Show Cause” Order directing the Plaintiffs to explain why the AIDS Vaccine case should not be randomly assigned. Either just before or just after she entered this Order, DOJ filed a Related Case Notice advising her that the case was related to the USAID Employee case pending before Judge Nichols.

In response to the “Show Cause” order, the Plaintiffs noted the connection to the USAID case — just as DOJ had done. After receiving the Plaintiff’s response, the Judge directed DOJ to file a response of its own, and DOJ again noted that both AIDS Vaccine and Global Health were related to the USAID employee case before Judge Nichols.

But rather than direct the Clerk to reassign the Global cases to Judge Nichols, she sent the AIDS Vaccine case back to the Clerk’s Office for random assignment.

From her perspective, Judge AliKahn might have deemed it “not her call” to say whether the two Global cases were sufficiently related to the USAID Employee case to warrant all three being assigned to Judge Nichols. Her view could very well have been that once she determined they were not related to her Non-Profits case then sending the case back to the Clerk’s Office was her only responsibility.

The Clerk’s Office reassigned the AIDS Vaccine case to Judge Ali. Judge AliKahn then directed that the Global Health case be transferred to Judge Ali as well.

There were Related Case Notices in the dockets of both cases when they were assigned to Judge Ali. But he nevertheless scheduled a telephone conference for both the next day without ever inquiring whether the cases should be reassigned to Judge Nichols. During that conference, the issue of the connection of the case to the USAID Employee case was referenced, but Judge Ali didn’t want to hear anything on the subject as he deemed the ongoing harm to the Plaintiffs too serious to allow for further delay. He later cut-off another effort by the DOJ attorney to raise the issue.

What is no doubt true is that Judge Ali — only 90 days on the bench after surviving a confirmation vote 50-49 (VP Harris breaking the tie) only because one GOP Senator opted to not be present for the vote — saw that he was in control of a case involving potentially billions of dollars of foreign aid spending through left-wing progressive interest groups. He was not going to surrender the cases for any reason — and certainly not for them to end up on the docket of a Trump appointee.

Judge Ali And Plaintiffs Draft A Comically Bad TRO.

I’m not going to get too deep into the weeds on the precise language of the TRO that was drafted based on a proposed order submitted by the Plaintiffs. It was certainly the goal of Judge Ali to reverse the “blanket pause” on funding of all USAID and State Department grants and contracts. But, based on DOJ request for clarification, he left a gigantic “loop-hole” through which the Agencies could continue on with their efforts to review all the grants and contracts before any additional moneys were paid out by the Treasury.

What the Trump Administration did was to follow this portion of the order precisely — every government contract or grant contains terms which allow for the payment of funds to be suspended for purposes of a compliance audit. When the Plaintiffs first complained about non-compliance because funding had not been restored, the Government pointed to this language and told the Court that the Agencies were simply reviewing the contracts and funding requests pursuant to the terms in the agreements that allowed for such a review. Judge Ali saw this as a subterfuge to evade the clear intention of his TRO and issued and Order with more emphatic language stating that the Agencies could not substitute other justifications for pausing funding in place of the “blanket pause” that was enjoined by the TRO. The intent of the Court was clear — the flow of funds was to resume without delay.

But the DOJ noted in a request for clarification the following:

Elsewhere, however, the order states that the TRO “does not restrain the agencies’ exercise of authorities under law,” including “statutes, regulations and other legal authorities,” and that “nothing in the TRO limits the agencies from conducting an individualized review of agreements and taking action as to a particular agreement where the agency determines that it has lawful authority to do so.”

The Government also noted that the TRO included no provisions with respect to the time frame under which it could undertake the review of the funding agreements pursuant to the terms of the agreements themselves, and that the Agencies were working as expeditiously as possible to complete an individualized review of each such agreement.

In effect, the TRO did not prohibit an individualized evaluation of the various grants and contracts paused under the “blanket order,” but the agreements themselves, as well as statutes and regulations that applied to them, provided that funding could be paused by the Agencies on a variety of grounds while they were evaluated as part of the foreign policy of the new Administration. The fact thousands of such agreements would be subject to such a review process, and that the total time it would take to conduct the review was difficult to estimate, didn’t negate the lawful basis upon which such a review could take place — with funding paused consistent with the terms of the agreements signed by the Plaintiffs.

This dispute came to a boil with the Plaintiffs filing of an “Emergency Motion Re Contempt” on February 24 after the flow of funds had still not yet resumed. That led Judge Ali to his February 25th order giving the Agencies only 36 hours to make approximately $2 billion in payments on an untold number of grants/contracts — nearly off of which would have been to entities who were not parties to the lawsuit. The Order would have required the Agencies to forego any kind of evaluation of the legitimacy of the claims presented, or any ability to confirm that the work covered by the payments had actually been performed in a satisfactory manner.

Judge Ali, by judicial decree, had turned the Treasury into an ATM for progressive left-wing NGOs and others who had been promised money by the Biden Admin.

Jurisdiction is Always At Issue.

A federal district court is a court of “limited” jurisdiction — its authority to adjudicate disputes is bounded by the specific jurisdiction given to it by Congress in various statutes.

The federal government also possesses “sovereign immunity” — it can only be sued to the extent that it has consented to allow itself to be sued. Congress is the branch of Government, with the agreement of the President, with the power to “waive” sovereign immunity — as well as set the conditions upon which it does so.

Congress has waived “sovereign immunity” for claims sounding in “breach of contract.” But, it has done so as part of a well-organized system of procedural rules for bringing such claims — and providing jurisdiction for all such claims in a single trial court — the U.S. Court of Claims.

It is basic civil procedure that a private party cannot sue the Government for breach of contract in U.S. District Court. The existence of the contract, the breach of the contract, and the damages arising from the breach of the contract are all questions committed only to the jurisdiction of the Judges of Court of Claims — no jury trials are allowed.

Judge Ali’s problem — likely is biggest problem in the eyes of Chief Justice Roberts and the Supreme Court — is that he brushed off questions of his jurisdiction while considering the TRO, and never seriously confronted the question of whether he, as a District Judge, had the jurisdictional authority to grant the relief requested in the complaint that started the case.

Repeatedly in his various orders he refers to the Plaintiffs as being owned funds based on contractual obligations. Since a District Court can’t entertain a claim for breach of contract, Judge Ali lacked jurisdiction to take any action — temporary or otherwise — for any claim arising out of an alleged breach of contract. When a Court lacks jurisdiction, it has no authority to act for or against any party.

Judge Ali did, in various places, rely on the Plaintiff’s allegation that one of the claims relates to a violation of the “Administrative Procedures Act,” i.e., that in implementing the “blanket pause” the Agencies took or failed to take some action in accordance with the requirements of the APA. A federal district court would have jurisdiction to entertain such a claim, and to award monetary damages that Plaintiffs might have suffered as a result of a violation of the APA.

But there is no place I can find in any of his Orders where Judge Ali does an analysis of whether, if the allegations of the complaint are true, the action of the Agencies — the “blanket pause” — is a “final agency action” subject to the APA and review by the Court. The Complaints make that allegation, but if the allegation — based on the facts as alleged — is insufficient to constitute “final agency action” then there is no APA claim and the District Court lacks jurisdiction to entertain the complaint.

The Government noted in its Application for a Stay filed with the Supreme Court that Judge Ali “sidestepped” the jurisdictional issues by claiming that the DOJ had not adequately preserved them in any written filing with the Court. Judge Ali noted during the hearing on February 25 that the Government could brief those issues more fully as part of its opposition to the application for a Preliminary Injunction.

That is a failure of Judging 102.

If Judge Ali lacks jurisdiction to hear and decide the issues raised by the Plaintiffs in the complaints, then he lacks the authority to order any preliminary relief such as the TRO. A federal district court must affirmatively determine that it does, in fact, have jurisdiction to entertain the claims being made after the issue of a lack of jurisdiction has been raised.

In his haste to “do right” Judge Ali lost sight of the fact that his authority is not omnipotent — particularly when he Order portends to intrude into the affairs of a co-equal branch of government.

As I said on X, it is my view that the powers that be over at DOJ saw the enthusiasm displayed by Judge Ali to intervene. They goaded him into taking a position with regard to his TRO that would not withstand scrutiny, and they encouraged him into ever more untenable positions by simply refusing to comply with the “spirit” of his Order because he left a gaping hole for them to exploit.

The end result was a very public slapdown of a brand new — just over 90 days — District Judge by the Chief Justice of the United States Supreme Court.

That’s going to leave a mark.