State of New Mexico v. Musk

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

STATE OF NEW MEXICO, et al.,

Plaintiffs,

v. No. 25-cv-429 (TSC)

ELON MUSK, et al.,

Defendants.

JAPANESE AMERICAN CITIZENS

LEAGUE, et al.,

Plaintiffs,

v. No. 25-cv-643 (TSC)

ELON MUSK, et al.,

Defendants.

MEMORANDUM OPINION

On January 20, 2025, President Trump issued an Executive Order purporting to establish

the “Department of Government Efficiency” (“DOGE”). See Compl. ¶ 65, No. 25-cv-643, ECF

No. 1; see also Establishing and Implementing the President’s “Department of Government

Efficiency,” Exec. Order No. 14,158, 90 Fed. Reg. 8,441 (Jan. 20, 2025). Soon thereafter, a

coalition of nonprofit organizations (collectively, “Plaintiffs” or “Nonprofit Plaintiffs”) 1 filed

this lawsuit, alleging that DOGE has unlawfully assumed an expansive role in the federal

government—terminating grants, cutting Congressionally allocated funds, firing federal workers,

1

Nonprofit Plaintiffs are the Japanese American Citizens League, OCA – Asian Pacific

American Advocates, the Sierra Club, and the Union of Concerned Scientists.

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and shuttering whole agencies without lawful authority to do so. See Compl. ¶¶ 64, 91, 154.

Defendants now move to dismiss. See Defs.’ Mot. to Dismiss, No. 25-cv-429, ECF No. 90

(“MTD”). For the reasons set forth below, the court will GRANT in part and DENY in part the

Motion to Dismiss.

I. BACKGROUND

In March 2025, the court consolidated this case brought by Nonprofit Plaintiffs with a

similar challenge to DOGE’s activities brought by a coalition of states led by New Mexico. See

Min. Order (Mar. 20, 2025), No. 25-cv-643. The court has already recounted much of the

relevant background in an earlier decision granting in part and denying in part Defendants’

Motion to Dismiss in the case brought by the State Plaintiffs. See New Mexico v. Musk, 784 F.

Supp. 3d 174, 186–91 (D.D.C. 2025). The following is a brief summary.

A. Factual Background

In his Executive Order purporting to establish DOGE, President Trump renamed the U.S.

Digital Service the “United States DOGE Service” (“USDS”) and created within the USDS the

“U.S. DOGE Service Temporary Organization.” Compl. ¶¶ 68, 70. The Order stated that the

DOGE Service Temporary Organization “shall be dedicated to advancing the President’s 18-

month DOGE agenda” and “shall terminate on July 4, 2026.” 90 Fed. Reg. at 8,441. Although

the Order describes a relatively limited role for DOGE, focused on modernizing the federal

government’s technology, see id., subsequent Executive Orders have indicated that DOGE plays

a more expansive role regarding the Administration’s efforts to reduce the size of the federal

workforce and to cut federal spending. See Implementing the President’s “Department of

Government Efficiency” Workforce Optimization Initiative, Exec. Order No. 14,210, 90 Fed.

Reg. 9,669 (Feb. 11, 2025) (requiring each agency to develop a hiring plan and to make hiring

decisions “in consultation with the agency’s DOGE Team Lead”); Implementing the President’s

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“Department of Government Efficiency” Cost Efficiency Initiative, Exec. Order No. 14,222, 90

Fed. Reg. 11,095 (Feb. 26, 2025) (directing agency heads to consult with DOGE officials to,

among other things, “review all existing covered contracts and grants”).

Plaintiffs claim that DOGE has vastly exceeded even the more expansive roles described

by the later Executive Orders. Rather than acting as mere consultants to agency officials, DOGE

officials have allegedly “direct[ed] executive departments and agencies to cancel federal grants

and loans, stop payments, terminate employees, reduce the workforce, and dismantle the

department or agency itself,” and have directly undertaken such actions themselves. Compl.

¶ 146; see also id. ¶ 144. DOGE has publicly claimed that it is saving the federal government

billions of dollars through “a combination of . . . contract/lease cancellations[,] grant

cancellations, interest savings, programmatic changes, regulatory savings, and workforce

reductions.” Id. ¶ 159; see also id. ¶ 155. DOGE has also claimed credit for shuttering the U.S.

Agency for International Development. Id. ¶¶ 192–95. Plaintiffs further allege that DOGE

officials lack any lawful authority to undertake such sweeping action. Id. ¶¶ 117–21.

B. Procedural History

In March 2025, Nonprofit Plaintiffs filed this lawsuit against the U.S. DOGE Service and

two individuals associated with DOGE (collectively, “DOGE Defendants”), as well as sixteen

federal agencies and the heads of those agencies (collectively, “Agency Defendants”). Plaintiffs’

Complaint brings four claims: Count One asserts that the DOGE Defendants are acting ultra

vires—that is, terminating grants, firing federal workers, and undertaking other action “despite

lacking lawful authority.” Compl. ¶¶ 322–25. Count Two alleges that the DOGE Defendants

are violating the separation of powers by cancelling grants and firing workers for which

Congress has provided appropriations and by otherwise “refusing to spend money appropriated

by Congress.” Id. ¶¶ 326–29. Count Three claims that Elon Musk—sued in his official capacity

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as the head of DOGE—is violating the Appointments Clause by wielding the power of a

principal officer without having received Senate confirmation. Id. ¶¶ 330–38. And Count Four

claims that Agency Defendants have undertaken unlawful agency action in violation of the

Administrative Procedure Act (“APA”) by, among other things, terminating grants and firing

federal workers. Id. ¶¶ 339–42. Although Elon Musk has left government, see Decl. of Amy

Gleason, ECF No. 117-1, Plaintiffs’ claims against him in his official capacity continue to run

against his successor. See Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer

who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the

action is pending. The officer’s successor is automatically substituted as a party.”); see also

infra Section III.B.c.

Defendants move to dismiss for lack of subject matter jurisdiction or, in the alternative,

failure to state a claim. For the reasons stated below, the court will GRANT Defendants’ Motion

with respect to Plaintiffs’ separation of powers and APA claims and DENY the Motion with

respect to Plaintiffs’ Appointments Clause and ultra vires claims.

II. LEGAL STANDARDS

Plaintiffs bear the burden of establishing this court’s jurisdiction. See Kokkonen v.

Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). In evaluating whether Plaintiffs have met that

burden at the pleading stage, the court is “required to ‘accept as true all of the factual allegations

contained in the complaint.’” Am. Freedom L. Ctr. v. Obama, 821 F.3d 44, 49 (D.C. Cir. 2016)

(quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)). But the court is not

limited “to the allegations of the complaint” and “may consider such materials outside the

pleadings as it deems appropriate.” Maynard v. Architect of the Capitol, 544 F. Supp. 3d 64, 69

(D.D.C. 2021) (cleaned up).

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In reviewing a motion to dismiss for failure to state a claim, the court must determine

whether the Complaint states “sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do not suffice.” Id.

III. DISCUSSION

A. Jurisdiction

a. Subject Matter Jurisdiction

“This Court starts where it must: with jurisdiction.” Cemex, Inc. v. Dep’t of Interior, 560

F. Supp. 3d 268, 274 (D.D.C. 2021). In general, district courts have jurisdiction over claims

arising under federal law, “but Congress may preclude [] jurisdiction by establishing an

alternative statutory scheme for administrative and judicial review.” AFGE, AFL-CIO v. Trump,

929 F.3d 748, 754 (D.C. Cir. 2019) (“AFGE I”). “It rests with Congress to determine not only

whether the United States may be sued, but in what courts the suit may be brought.” Franklin-

Mason v. Mabus, 742 F.3d 1051, 1054 (D.C. Cir. 2014) (cleaned up).

Defendants contend that this court lacks jurisdiction over Plaintiffs’ claims to the extent

those claims challenge the termination of federal grants and the firings of federal employees. See

MTD at 16–25. They argue that the Tucker Act vests exclusive jurisdiction over grant-related

claims with the Court of Federal Claims, and the Civil Service Reform Act (“CSRA”) channels

employment claims to the Merit Systems Protection Board (“MSPB”). See MTD at 16, 20. The

court agrees that it lacks jurisdiction over past grant terminations and employment claims, but

the Tucker Act does not divest this court of as much jurisdiction as Defendants assert.

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i. Termination of Federal Grants

To start, the court agrees with Defendants that it lacks jurisdiction over Plaintiffs’ claims

to the extent they directly challenge past grant terminations. The Tucker Act vests the Court of

Federal Claims with exclusive jurisdiction over claims based on an “express or implied contract

with the United States” for over $10,000. 28 U.S.C. § 1491(a)(1); see also § 1346(a)(2). And

the APA’s limited waiver of sovereign immunity does not extend to orders “to enforce a

contractual obligation to pay money.” Dep’t of Educ. v. California, 604 U.S. 650, 651 (2025)

(quoting Great-West Life & Annuity Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002)).

The Supreme Court has recently indicated that, under these principles, district courts lack

jurisdiction to adjudicate claims that directly challenge past grant terminations. See NIH v. Am.

Pub. Health Ass’n, 145 S. Ct. 2658, 2661 (2025) (Barrett, J., concurring) (citing Dep’t of Educ.

v. California, 604 U.S. 650 (2025) (per curiam)). To reinstate a grant would be “to order relief

designed to enforce [an] ‘obligation to pay money’ pursuant to those grants.” See id. at 2659

(majority opinion) (quoting California, 604 U.S. at 651). And a direct challenge to a grant

termination is, in effect, “a breach of contract claim” which “must be brought in the Court of

Federal Claims.” Id. at 2665 (Kavanaugh, J., concurring in part and dissenting in part).

“Nonetheless, the Court did not go so far as to suggest that the Tucker Act precludes

federal district court jurisdiction over all claims relating to grant terminations.” Council for

Opportunity in Educ. v. Dep’t of Educ., No. 25-cv-3514, 2026 WL 120984, at *7 (D.D.C. Jan.

16, 2026). As Justice Barrett made clear in her controlling concurrence in NIH, district courts

still have jurisdiction to vacate unlawful policies concerning grant terminations. See 145 S. Ct.

at 2661 (Barrett, J., concurring). That a policy “relate[s] to grants does not transform a challenge

to [that policy] into a claim found upon contract.” Id. (cleaned up). That is in part because

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“[v]acating the guidance does not reinstate terminated grants,” id., meaning the relief granted

would not amount to an impermissible order to pay out a contractual obligation. See California,

604 U.S. at 650–51. And it is in part because such relief “would not be determined by reference

to the terms of the contract,” but instead by reference to established principles of constitutional

and administrative law. Perry Cap. LLC v. Mnuchin, 864 F.3d 591, 619 (D.C. Cir. 2017). In

sum, this court cannot review past grant terminations, but the Tucker Act does not deprive it of

jurisdiction to vacate and prospectively enjoin unlawful policies concerning such terminations or

decisions to cut funds appropriated by Congress—decisions which do not sound in contract.

ii. Firings of Federal Employees

Next, Defendants contend that the CSRA displaces this court’s jurisdiction over

Plaintiffs’ claims insofar as they challenge DOGE’s mass firings of federal workers. The CSRA

“generally directs claims concerning [adverse] personnel actions [against federal employees] to

the Merit Systems Protection Board,” and disputes regarding federal labor-management issues to

the Federal Labor Relations Authority (“FLRA”). Lucas v. AFGE, 151 F.4th 370, 375 (D.C. Cir.

2025). But the court must decide whether claims challenging mass firings on constitutional

grounds—brought not by federal workers and their unions, but by nonprofits harmed by those

firings—are “of the type Congress intended to be reviewed within” the CSRA’s “statutory

structure.” Axon Enter. v. FTC, 598 U.S. 175, 186 (2023) (cleaned up). Three considerations aid

that inquiry: “First, could precluding district court jurisdiction ‘foreclose all meaningful judicial

review’ of the claim? Next, is the claim ‘wholly collateral to the statute’s review provisions’?

And last, is the claim ‘outside the agency’s expertise’?” Id. (quoting Thunder Basin Coal Co. v.

Reich, 510 U.S. 200, 212–13 (1994)). These considerations indicate that this court lacks

jurisdiction over Plaintiffs’ employment claims.

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To start, the CSRA comprehensively “regulates virtually every aspect of federal

employment.” Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir.

2009). It provides a “carefully constructed . . . system for review and resolution of federal

employment disputes, intentionally providing—and intentionally not providing—particular

forums and procedures for particular kinds of claims.” Filebark v. Dep’t of Transp., 555 F.3d

1009, 1010 (D.C. Cir. 2009). Plaintiffs do not dispute that a federal labor union could, for

example, bring claims related to mass reductions in force before the FLRA, or that individual

fired employees could bring claims before the MSPB. See Nat’l Treasury Emps. Union v.

Trump, 770 F. Supp. 3d 1, 8 (D.D.C. 2025). Instead, they argue that their claims are excluded

from MSPB or FLRA review because, as nonprofit organizations, they are neither federal

employees nor federal unions able to access those review mechanisms. See Pls.’ Opp’n to MTD

at 23–25, ECF No. 97 (“Pls.’ Opp’n”). But “[i]n a complex scheme of this type, the omission of

such a provision” allowing non-employees or non-unions to challenge federal labor decisions “is

sufficient reason to believe that Congress intended to foreclose [their] participation” in these

disputes and to instead leave the disputes to direct stakeholders. Block v. Cmty. Nutrition Inst.,

467 U.S. 340, 347 (1984).

Second, Plaintiffs’ challenges to the firings of federal employees are not wholly collateral

to the CSRA’s review provisions. Indeed, the Supreme Court has said that “[a] challenge to

removal is precisely the type of personnel action regularly adjudicated by the MSPB.” Elgin v.

Dep’t of Treasury, 567 U.S. 1, 22 (2012). And the D.C. Circuit has indicated that a federal labor

union can challenge the government’s implementation of a “government-wide rule[]” by

charging “that the agency had refused to bargain over mandatory matters” in violation of the

CSRA. See AFGE I, 929 F.3d at 757. Such a challenge could be mounted against the

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implementation of a mass reduction in force policy. See Nat’l Treasury Emps. Union v. Trump,

770 F. Supp. 3d at 8. Finally, although the MSPB and the FLRA may address “nothing special

about the separation of powers,” Axon Enter., 598 U.S. at 194, the Supreme Court has said that

the CSRA’s “exclusivity does not turn on the constitutional nature of an employee’s claim, but

rather on the type of the employee and the challenged employment action.” Elgin, 567 U.S. at

15. Moreover, the MSPB or the FLRA could reinstate fired workers on nonconstitutional

grounds uniquely within their wheelhouse, thus “obviat[ing] the need to address the

constitutional challenge.” Id. at 22–23. In sum, the CSRA displaces this court’s jurisdiction

over Plaintiffs’ claims insofar as they concern employment issues.

b. Standing

That does not end the jurisdictional inquiry. Defendants also contend that Plaintiffs lack

Article III standing. MTD at 7–16. Under Article III of the Constitution, “the jurisdiction of

federal courts” is limited “to ‘Cases’ and ‘Controversies.’” FDA v. All. for Hippocratic Med.,

602 U.S. 367, 378 (2024). For there to be a case or controversy, a plaintiff must have standing to

sue. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013).

As the party invoking the court’s jurisdiction, Plaintiffs “bear[] the burden of

establishing” standing. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016). Notably, “the manner

and degree of evidence required” to establish standing varies depending on the “stage[] of the

litigation.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). “At the pleading stage, general

factual allegations . . . may suffice.” Id. (cleaned up). The court, moreover, is not limited to

allegations in the complaint. It may also “‘consider materials outside the pleadings,’” “including

additional declarations or affidavits provided by a plaintiff to support standing.” Ctr. for Bio.

Diversity v. U.S. Int’l Dev. Fin. Corp., 585 F. Supp. 3d 63, 70 (D.D.C. 2022) (quoting Marsh v.

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Johnson, 263 F. Supp. 2d 49, 54 (D.D.C. 2003)); see also Warth v. Seldin, 422 U.S. 490, 501

(1975) (“For purposes of ruling on a motion to dismiss for want of standing, . . . it is within the

trial court’s power to allow . . . the plaintiff to supply, by amendment to the complaint or by

affidavits, further particularized allegations of fact deemed supportive of plaintiff’s standing.”).

Nonprofit Plaintiffs argue that they need not establish their own standing because the

court has already held that the State Plaintiffs adequately plead standing. See Pls.’ Opp’n at 4

n.2; see also New Mexico, 784 F. Supp. 3d at 191–98. This argument is unavailing. “[S]tanding

is not dispensed in gross.” Town of Chester v. Laroe Estates, Inc., 581 U.S. 433, 439 (2017)

(quoting Davis v. FEC, 554 U.S. 724, 734 (2008)). “At least one plaintiff must have standing to

seek each form of relief requested in the complaint.” Id. And in fashioning an injunction, the

court is limited to issuing relief that is no “broader than necessary to provide complete relief to

each plaintiff with standing to sue.” Trump v. CASA, Inc., 606 U.S. 831, 861 (2025). Thus,

because each Nonprofit Plaintiff seeks injunctive relief that covers them individually and not the

State Plaintiffs, each Nonprofit Plaintiff must establish their own standing. Moreover, the State

Plaintiffs have since voluntarily dismissed their claims. See Notice of Voluntary Dismissal, ECF

No. 116.

Nonprofit Plaintiffs assert associational standing to sue on behalf of their members. Pls.’

Opp’n at 4–10. An association has standing if (1) at least one of its members has standing in his

or her own right, (2) “the interests [that the association] seeks to protect [through the lawsuit] are

germane to its purposes,” and (3) it is not necessary for “an individual member [to] participate

[directly] in the lawsuit.” Nat’l Council for Adoption v. Blinken, 4 F.4th 106, 111 (D.C. Cir.

2021) (cleaned up). Defendants do not dispute that the latter two requirements are met, and the

court is satisfied that they are. See Humane Soc’y of U.S. v. Hodel, 840 F.2d 45, 53–58 (D.C.

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Cir. 1988) (explaining that the germaneness requirement is “undemanding” and that requests for

injunctive relief generally do “not . . . require[] the participation of any individual member”).

Instead, Defendants contend that each Plaintiff fails to identify a member with standing in his or

her own right. See MTD at 8.

i. Standing Declarations

As an initial matter, Plaintiffs seek to establish standing using eight declarations from

their members.2 Plaintiffs have moved for leave to file five of these declarations under

pseudonyms. See Pls.’ Second Mot. for Leave to Identify Declarants by Pseudonym, ECF No.

98. The court will grant Plaintiffs’ motion for purposes of deciding the Motion to Dismiss.

Although the public has a strong interest in the “openness” of judicial proceedings, the

court may in “rare” cases allow parties to proceed pseudonymously. See In re Sealed Case, 971

F.3d 324, 326 (D.C. Cir. 2020) (cleaned up). The moving party must first demonstrate “a

concrete need for such secrecy” and identify the “consequences that would likely” result should

secrecy be denied. Id. Upon “a legitimate showing of need,” the court must balance the moving

party’s “interest in anonymity against countervailing interests in full disclosure.” Id.

Although the declarations do not reveal sensitive or highly personal information

regarding Plaintiffs’ members, Plaintiffs have demonstrated a nonspeculative danger that their

members would be subjected to harassment and retaliation should their names be disclosed. See

Am. Sealed Mot. to Proceed, ECF No. 72 at 5–7. They have also shown that their members’

interest in anonymity outweighs the countervailing interests in disclosure, at least at this stage of

2

See Ex. A, Decl. of Mary Anne Kenworthy, ECF No. 97-1; Ex. B, Decl. of J. Doe 2, ECF No.

97-2; Ex. C, Decl. of J. Doe 3, ECF No. 97-3; Ex. D, Decl. of Rebecca Ozaki, ECF No. 97-4;

Ex. E, Decl. of J. Doe 4, ECF No. 97-5; Ex. F, Decl. of J. Doe 5, ECF No. 97-6; Ex. G, Decl.

of J. Doe 6, ECF No. 97-7; Ex. H, Decl. of Connor McIntosh, ECF No. 97-8.

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the litigation. Although the public has a heightened interest in transparency given that this is a

suit against government officials regarding an important matter of government affairs, see Doe v.

Pub. Citizen, 749 F.3d 246, 274 (4th Cir. 2014), the high-profile aspect cuts both ways, because

it also exacerbates the risk of reprisal that the declarants face, which would involve significant

and nonspeculative mental and economic harms. Moreover, although none of the declarants are

minors, that factor is not dispositive. See Sealed Case, 971 F.3d at 326 (noting that this

“balancing test is necessarily flexible and fact driven”).

Defendants oppose the use of pseudonymous declarants to establish standing. See Defs.’

Reply at 2, ECF No. 104. They point out that, to establish associational standing, an association

“must specifically identify members who have suffered the requisite harm.” Chamber of Com. of

U.S. v. EPA, 642 F.3d 192, 199 (D.C. Cir. 2011) (cleaned up). But that does not mean an

association must always identify their injured members by name. The Ninth Circuit recently

held that if “a defendant does not need to know the identity of a particular member to defend”

against a standing claim, then the association “does not have to” furnish names. Mi Familia Vota

v. Fontes, 129 F.4th 691, 708 (9th Cir. 2025). At the pleading stage, where general allegations of

injury are accepted as true, defendants typically do not need the specific names of plaintiffs’

members. See Am. Ass’n of Cosmetology Schs. v. Devos, 258 F. Supp. 3d 50, 67 (D.D.C. 2017).

The pseudonymized declarations here are detailed enough to allow Defendants to respond to

Plaintiffs’ standing claims for purposes of a motion to dismiss. Defendants’ “argument that the

persons allegedly injured must be identified by name might have some validity if this litigation

were at the summary judgment stage.” Bldg. & Constr. Trades Council of Buffalo v. Downtown

Dev., Inc., 448 F.3d 138, 144–45 (2d Cir. 2006). But that is a bridge the court need not yet cross.

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At least at this stage of the litigation, there is no undue prejudice to Defendants from allowing

the use of pseudonymized declarations.

ii. Whether Plaintiffs’ Members Would Have Standing

The court turns now to whether the declarations show that Plaintiffs’ members would

have standing to sue in their own right. For a member to have standing, three elements must be

met: “injury, causation, and redressability.” Nat’l Council for Adoption, 4 F.4th at 111. When,

as here, “a plaintiff seeks prospective relief such as an injunction, the plaintiff must establish a

sufficient likelihood of future injury.” All. for Hippocratic Med., 602 U.S. at 381. “Allegations

of possible future injury are not sufficient.” Clapper, 568 U.S. at 409 (emphasis in original)

(cleaned up). The “risk of future harm” must be “sufficiently imminent and substantial.”

TransUnion LLC v. Ramirez, 594 U.S. 413, 435 (2021). Still, “absolute certainty is not

required.” In re Navy Chaplaincy, 697 F.3d 1171, 1178 (D.C. Cir. 2012) (quoting NB ex rel.

Peacock v. District of Columbia, 682 F.3d 77, 85 (D.C. Cir. 2012)).

All four Nonprofit Plaintiffs—the JACL, Sierra Club, UCS, and OCA—have sufficiently

pled associational standing at this early stage of the litigation. To start, the Complaint alleges

that both JACL and Sierra Club members regularly visit parks managed by the National Park

Service (“NPS”), and that these parks have already been adversely impacted by DOGE-initiated

cuts to funding at national parks in ways that impair the enjoyment of JACL and Sierra Club

members. See Compl. ¶¶ 5–6, 15, 23–24, 31, 217, 219–27. Declarations from two Sierra Club

members describe specific plans to visit NPS parks at which services have already deteriorated

because of DOGE cuts—harms which are ongoing until the funding is restored. See Decl. of

Mary Anne Kenworthy ¶¶ 6, 9–13; Decl. of J. Doe 2 ¶¶ 9, 12–17. And a declaration from a

JACL member who regularly chaperones school trips to national parks states that they canceled

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trips because NPS staff were unavailable to offer guided tours due to the DOGE-initiated funding

cuts. See Decl. of J. Doe 3 ¶¶ 2, 4, 7. These injuries to the recreational, aesthetic, educational,

and professional interests of Plaintiffs’ members are cognizable for purposes of standing. See,

e.g., Ctr. for Bio. Diversity v. U.S. Fish & Wildlife Serv., 146 F.4th 1144, 1158 (D.C. Cir. 2025).

And the ongoing harms inflicted by DOGE-initiated cuts would be redressed by the vacatur of

those cuts at parks visited by Sierra Club and JACL members. Moreover, the Complaint

adequately alleges a substantial risk of future additional cuts. In particular, it claims that DOGE

is actively soliciting “help from the public” in “finding and fixing waste, fraud and abuse relating

to the National Park Service,” see Compl. ¶¶ 217, 227, which forebodes a “realistic danger” that

DOGE will implement further cuts to the NPS that would impact the aforementioned JACL and

Sierra Club members, see Navy Chaplaincy, 697 F.3d at 1178.

Similarly, the Complaint alleges that UCS members work on research projects that have

lost grants due to DOGE-initiated grant terminations. See Compl. ¶¶ 315–18. UCS has

submitted declarations from two members whose research projects have been harmed by these

grant terminations. See generally Decl. of J. Doe 4; Decl. of J. Doe 5. Although the Tucker Act

displaces the court’s jurisdiction to review past grant terminations, the UCS declarations assert

that grant guidance issued by DOGE will affect both the future termination of existing grants and

the future award of new grants to UCS members. See Decl. of J. Doe 4 ¶ 8; Decl. of J. Doe 5 ¶¶

4, 10. In particular, the UCS declarants have averred that research grants continue to be

terminated; that their still-existing grants are likely to be affected by ongoing terminations; and

that DOGE will continue to prevent agencies from reviewing new grant applications that

otherwise likely would be granted. See Decl. of J. Doe 4 ¶¶ 4–5; Decl. of J. Doe 5 ¶¶ 3–6. The

court could redress the ongoing harms and the substantial risk of future harm by vacating

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unlawful DOGE guidance and enjoining DOGE Defendants from directing more unlawful grant

terminations.

A declaration from an OCA member pursuing a degree in public health avers that they

lost an internship with the Substance Abuse and Mental Health Services Administration

(“SAMHSA”), thus harming the member’s “readiness to work in public health” following

graduation. See Decl. of J. Doe 6 ¶¶ 17–24; see also Compl. ¶ 258 (adequately pleading a link

between this harm and DOGE activity with respect to the SAMHSA). The OCA declarant

averred that she has applied for additional federal internship opportunities that have subsequently

been cut, leading her to credibly fear “that these positions will continue to be terminated.” Decl.

of J. Doe 6 ¶ 26. An order vacating cuts to internship programs and prospectively enjoining

future cuts by DOGE officials without the authority to do so would likely redress these harms.

Finally, Plaintiffs have adequately alleged that the harms they assert are fairly traceable

to the DOGE Defendants. It is well established that “Article III standing does not require that

the defendant be the most immediate cause, or even a proximate cause, of the plaintiffs’ injuries;

it requires only that those injuries be ‘fairly traceable’ to the defendant.” Attias v. Carefirst, Inc.,

865 F.3d 620, 629 (D.C. Cir. 2017). The Complaint adequately alleges that the cuts causing

Plaintiffs harm are fairly traceable to Defendants because Defendants initiated those cuts,

“[e]ven if other employees or officials at agencies technically pushed the button to halt

payments” or fire staff. New Mexico, 784 F. Supp. 3d at 197. Because each Nonprofit Plaintiff

has adequately pled associational standing, the court need not address Plaintiffs’ organizational

standing claims. See Children’s Health Def. v. FCC, 25 F.4th 1045, 1049 n.2 (D.C. Cir. 2022).

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c. Mootness

After Defendants moved to dismiss, Elon Musk left government. See Decl. of Amy

Gleason. The court ordered the parties to submit supplemental briefing on whether Musk’s

departure moots Plaintiffs’ claims. See Min. Order (Dec. 17, 2025). Defendants argue only that

Musk’s departure mooted Count Three—the Appointments Clause claim. Notably, Defendants

do not indicate that Musk’s departure has otherwise resulted in the cessation of DOGE’s alleged

ongoing cuts to federal programs. See generally Defs.’ Suppl. Br., ECF No. 117. To the

contrary, the Gleason Declaration indicates that DOGE is still up and running. See Decl. of Amy

Gleason ¶ 2.

In any event, Count Three is not moot. “A case becomes moot ‘only when it is

impossible for a court to grant any effectual relief whatever to the prevailing party.’” Crowley

Gov’t Servs., Inc. v. GSA, 143 F.4th 518, 526 (D.C. Cir. 2025) (quoting Zukerman v. U.S. Postal

Serv., 961 F.3d 431, 442 (D.C. Cir. 2020)) (emphasis in original). Here, if Plaintiffs prevail on

their claim that Musk was not constitutionally appointed and therefore lacked authority to

exercise the power of a principal officer, the court could vacate Musk-initiated policies or cuts

that are causing Plaintiffs ongoing harm. See Collins v. Yellen, 594 U.S. 220, 257 (2021)

(indicating that actions taken by an officer who is not constitutionally appointed are void); see

also United States v. Comey, No. 25-cr-272, 2025 WL 3266932, at *11 (E.D. Va. Nov. 24, 2025)

(“When an appointment violates the Appointments Clause from the jump, the actor has exercised

power that she did not lawfully possess. . . . In such a case, the proper remedy is invalidation of

the ultra vires actions taken by the actor.” (cleaned up)). And, in any event, the Appointments

Clause claim may continue to run against whoever has replaced Musk as head of DOGE. See

Fed. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an

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official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The

officer’s successor is automatically substituted as a party.”).

B. Failure to State a Claim

Defendants argue in the alternative that Plaintiffs’ Complaint should be dismissed under

Rule 12(b)(6) for failure to state any claims. See MTD at 25–44. The court agrees that

Plaintiffs’ APA and separation of powers claims must be dismissed but finds that Plaintiffs have

adequately stated Appointments Clause and ultra vires claims.

a. Administrative Procedure Act

Plaintiffs bring a single APA count broadly alleging that Agency Defendants’ termination

of grants, contracts, and federal workers, and “dismantling of federal executive departments and

agencies” is arbitrary, capricious, and contrary to law, and must be set aside. Compl. ¶¶ 339–42.

The court lacks jurisdiction over this claim insofar as it challenges past grant terminations or the

termination of federal workers. See supra Section III.A.a. To the extent it challenges other

DOGE action over which the court has jurisdiction, Plaintiffs’ APA claim must nevertheless be

dismissed because it fails to adequately identify specific agency action.

The APA authorizes an aggrieved party to challenge “agency action” that harms them. 5

U.S.C. § 702. The APA defines agency action by reference to “circumscribed, discrete”

examples, such as an “‘agency rule, order, license, sanction [or] relief.” Norton v. S. Utah

Wilderness All., 542 U.S. 55, 62 (2004) (quoting 5 U.S.C. § 551(13)). Accordingly, “[u]nder the

terms of the APA, [a plaintiff] must direct its attack against some particular ‘agency action’ that

causes it harm,” and may not seek “wholesale . . . programmatic improvements.” Lujan v. Nat’l

Wildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasis in original); see also Norton, 542 U.S. at 64

(noting that the APA “precludes . . . broad programmatic attack[s]”). The requirement that a

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plaintiff identify “some concrete action” helps reduce “the scope of the controversy . . . to more

manageable proportions.” Nat’l Wildlife Fed’n, 497 U.S. at 891.

The problem with Plaintiffs’ single APA claim as currently pleaded is it operates at too

high a “level of generality,” and fails to identify “a specific final agency action.” Nat’l Wildlife

Fed’n, 497 U.S. at 894 (cleaned up). The court does not doubt that an order to close an agency

or the implementation of a directive regarding a funding freeze could be sufficiently specific to

constitute discrete agency actions subject to APA review. See, e.g., Nat’l Treasury Emps. Union

v. Vought, 774 F. Supp. 3d 1, 43 (D.D.C. 2025); New York v. Trump, 133 F.4th 51, 66–68 (1st

Cir. 2025). The problem with Plaintiffs’ Complaint is that it lumps together an assortment of

actions across sixteen federal agencies into a single APA claim. Such broad and unbounded

pleading lacks the specificity required for identifying particular actions and can only be

construed as a wholesale programmatic attack. Plaintiffs’ APA claim must therefore be

dismissed. And because the APA claim is the only claim against the Agency Defendants, they

will be dismissed from this case as well.3

b. Separation of Powers

Plaintiffs allege that the DOGE Defendants are acting “in violation of the separation of

powers” by terminating grants, firing federal employees, and abolishing federal agencies that

have all been “funded by congressional appropriations.” Compl. ¶ 329. But under the D.C.

3

The court will grant Defendants’ Motion for Relief from Local Civil Rule 7(n). See ECF No.

87. Local Civil Rule 7(n) provides that “[i]n cases involving the judicial review of

administrative agency actions,” the government generally “must file a certified list of the

contents of the administrative record . . . simultaneously with the filing of a dispositive

motion.” However, the court does not need the administrative record to decide the

jurisdictional issues or the deficiency in Plaintiffs’ APA claim. See Arab v. Blinken, 600 F.

Supp. 3d 59, 65 n.2 (D.D.C. 2022) (court may waive compliance with Local Civil Rule 7(n) if

“the administrative record is not necessary for the court’s decision” (quoting Connecticut v.

Dep’t of Interior, 344 F. Supp. 3d 279, 294 (D.D.C. 2018))).

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Circuit’s decision in Global Health Council v. Trump, Plaintiffs “lack a cause of action to bring

[this] freestanding constitutional claim.” 153 F.4th 1, 17 (D.C. Cir. 2025). That is because

Plaintiffs’ claim is premised on Defendants’ alleged violation of statutes appropriating funds and

creating agencies. See Nat’l Treasury Emps. Union v. Vought, 149 F.4th 762, 792–93 (D.C. Cir.

2025) (“The assertedly constitutional claim here begins with the premise that shutting down the

[agency] would violate the statutes that create the agency[.]”). And the D.C. Circuit has said that

under Dalton v. Specter, 511 U.S. 462 (1994), such “statutory claims cannot be transformed into

constitutional ones” through creative pleading. Glob. Health, 153 F.4th at 16; see also Dalton,

511 U.S. at 472 (“Our cases do not support the proposition that every action by the President, or

by another executive official, in excess of his statutory authority is ipso facto in violation of the

Constitution. On the contrary, we have often distinguished between claims of constitutional

violations and claims that an official has acted in excess of his statutory authority.”). Were it

otherwise, litigants could “avoid statutory limits on review by reframing any alleged statutory

violation . . . as a constitutional one.” Glob. Health, 153 F.4th at 14. In short, because Plaintiffs’

separation of powers claim is “truly alleging . . . statutory violation[s],” Plaintiffs lack a

freestanding constitutional cause of action. Ass’n for Educ. Fin. & Pol’y v. McMahon, 786 F.

Supp. 3d 13, 28 (D.D.C. 2025). They must instead bring claims under those statutes.

c. Appointments Clause

Plaintiffs have, however, stated a claim under the Constitution’s Appointments Clause.

“That Clause specifies how the President may appoint officers who assist him in carrying out his

responsibilities.” United States v. Arthrex, Inc., 594 U.S. 1, 10 (2021). The Supreme Court has

held that the Clause requires that “[p]rincipal officers must be appointed by the President with

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the advice and consent of the Senate, while inferior officers may be appointed by the President

alone, the head of an executive department, or a court.” Id. (emphasis in original).

Plaintiffs allege that the head of DOGE is a principal officer who has not received Senate

confirmation. Compl. ¶¶ 2, 332. “The Senate’s advice and consent power is a critical ‘structural

safeguard of the constitutional scheme,’” which seeks to guard against “the appointment of unfit

characters” to high public office. NLRB v. SW Gen., Inc., 580 U.S. 288, 293 (2017) (quoting

Edmond v. United States, 520 U.S. 651, 659 (1997)) (cleaned up); see also Freytag v. Comm’r,

501 U.S. 868, 883 (1991) (explaining that the Appointments Clause sought to remedy “one of the

American revolutionary generation’s greatest grievances against executive power,” “the

manipulation of official appointments” (citation omitted)); Edmond, 520 U.S. at 659–60 (the

requirement of Senate confirmation “serves both to curb Executive abuses of the appointment

power . . . and to promote a judicious choice of [individuals] for filling the offices of the union”

(cleaned up)). Defendants do not claim that the Senate has confirmed the head of DOGE.

Instead, they contend that the head of DOGE is not an officer of the United States, and his

appointment therefore does not implicate the Appointments Clause. See MTD at 25–29.

The Appointments Clause is concerned only with the appointment of officers. See New

Mexico, 784 F. Supp. 3d at 199 (“To state an Appointments Clause violation, a plaintiff must

allege that an ‘Officer of the United States’ has not been constitutionally appointed.” (quoting

U.S. Const. art. II, § 2, cl. 2)). The Clause “cares not a whit” about the appointment of “non-

officer employees”—the “lesser functionaries” who make up the vast bulk of “the Government’s

workforce.” Lucia v. SEC, 585 U.S. 237, 245 (2018); see also Freytag, 501 U.S. at 880 (non-

officer employees “need not be selected in compliance with the strict requirements of Article

II”). But contrary to Defendants’ contention, Plaintiffs have adequately pled that the head of

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DOGE is an officer of the United States. “In the constitutional context, an ‘officer’ is someone

who”: (1) “‘occupies a continuing position established by law,’” and (2) “‘exercises significant

authority pursuant to the laws of the United States.’” Al Bahlul v. United States, 967 F.3d 858,

869 (D.C. Cir. 2020) (quoting Lucia, 585 U.S. at 245). The Complaint sufficiently alleges both.

i. Continuing Position Established by Law

As to the first prong, Plaintiffs have adequately pled that the head of DOGE occupies a

continuing position. A position is “continuing” when it (1) is “not transient or fleeting,” (2) is

“not personal to a particular individual,” and (3) carries out duties that are “more than incidental

to the regular operations of government.” United States v. Donziger, 38 F.4th 290, 297 (2d Cir.

2022). Although a continuing position cannot be transient or fleeting, it need not be permanent.

Id. at 296. The Supreme Court has held that a special counsel’s time-limited position can

constitute a “continuing position,” even though the role generally ends when the counsel “has

completed or substantially completed any investigations or prosecutions undertaken.” Morrison

v. Olson, 487 U.S. 654, 664, 671 n.12 (1988); accord In re Grand Jury Investigation, 916 F.3d

1047, 1052–53 (D.C. Cir. 2019). In this case, the position will exist for at least 18 months:

President Trump’s Executive Order indicates that the “U.S. DOGE Service Temporary

Organization,” created on January 20, 2025, will not terminate until at least July 4, 2026. See

Exec. Order No. 14,158, 90 Fed. Reg. 8,441 (Jan. 20, 2025). And even if the DOGE Service

Temporary Organization in fact terminates on that date, “there is no termination date for the

overarching DOGE entity or its leader, suggesting permanence.” New Mexico, 784 F. Supp. 3d

at 201. Indeed, the Executive Order establishing DOGE states that the termination of the DOGE

Service Temporary Organization “shall not be interpreted to imply the termination, attenuation,

or amendment of any other authority or provision of this order.” 90 Fed. Reg. at 8,441.

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Accordingly, Plaintiffs have adequately alleged that the position of DOGE leader is “not

transient or fleeting.” Donziger, 38 F.4th at 297.

Plaintiffs have also sufficiently pled that “the position is not personal to a particular

individual.” Donziger, 38 F.4th at 297. Although DOGE is most closely associated with its first

leader, Elon Musk, the Complaint alleges that Musk led DOGE as a special government

employee, a position he was required to vacate after 130 days. See Compl. ¶ 36; see also 18

U.S.C. § 202(a) (defining a “special government employee” as “an officer or employee” who

cannot serve for more than 130 days a year). Given that DOGE will exist for at least 18 months,

Plaintiffs have sufficiently alleged that “the position [of DOGE’s leader] is not personal to

Musk” and does not disappear after he leaves government. New Mexico, 784 F. Supp. 3d at 201;

see also Donziger, 38 F.4th at 297 (a position does not “depend on the identity of the person

occupying it” if that individual “could be replaced without the duties of the position[]

terminating”). Plaintiffs’ Appointments Clause claim may thus lie against whoever succeeds

Musk in leading DOGE. See New Mexico, 784 F. Supp. 3d at 201; see also Fed. R. Civ. P.

25(d).

Finally, Plaintiffs have adequately alleged that “the duties of the position” are “more than

incidental to the regular operations of government.” Donziger, 38 F.4th at 297; see also id. at

298 (indicating that “weighty and important” duties are not incidental (cleaned up)). As

described in more detail below, the Complaint asserts that the head of DOGE is “in fact directing

executive departments and agencies to cancel federal grants and loans, stop payments, terminate

employees, reduce the workforce, and dismantle the department or agency itself.” Compl. ¶ 146

(emphasis in original). Such significant authority over “core” governmental operations plainly

renders the position more than incidental. Donziger, 38 F.4th at 298.

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ii. Significant Authority Pursuant to the Laws of the United States

For similar reasons, Plaintiffs have sufficiently alleged that the head of DOGE exercises

significant authority. The significant authority inquiry turns on “(1) the significance of the

matters resolved by the officials, (2) the discretion they exercise in reaching their decisions, and

(3) the finality of those decisions.” Tucker v. Comm’r, 676 F.3d 1129, 1133 (D.C. Cir. 2012);

see also Lucia, 585 U.S. at 245 (directing courts to consider “the extent of power an individual

wields in carrying out his assigned functions”).

As discussed above, the alleged powers of the head of DOGE are clearly weighty and

important. They include the power to “dismantle and shutter federal agencies,” Compl. ¶ 190;

direct “mass federal employee terminations,” id. ¶ 178; “stop the disbursement of federal

payments,” id. ¶ 163; and “direct [the] cancellation of . . . federal grants, contracts, [and] leases,”

id. ¶¶ 154–55. The Complaint alleges that the head of DOGE carries out these significant

powers under the color of the President’s authority, even though these powers have not been

authorized by Congress. See id. ¶ 266. And in carrying out these significant powers, the head of

DOGE allegedly exercises almost “unchecked” discretion and receives minimal supervision,

“report[ing] only to the President of the United States” who acts largely as a “rubber stamp.” Id.

¶¶ 191, 335; see also id. ¶ 110 (the leader of DOGE “answers only to the President of the United

States, if anyone”). Finally, the Complaint alleges that the head of DOGE issues orders that

agency officials follow. See id. ¶ 146 (describing this dynamic).

Accordingly, the head of DOGE is not merely an influential advisor who counsels the

President and then communicates the President’s decisions to government officers. Contra MTD

at 28 (attempting to minimize the DOGE leader as a mere advisor with “informal influence,” but

no “formal authority”). As discussed above, the Complaint amply alleges that the head of

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DOGE himself makes decisions and issues directives on matters as weighty as the termination of

federal grants, contracts, and workers. Compl. ¶¶ 144, 146.

iii. Defendants’ Arguments to the Contrary

Defendants primarily argue that Plaintiffs fail to state an Appointments Clause claim

because the head of DOGE “does not occupy an office” formally established by law and

allegedly lacks lawful authority for the powers he is exercising. See MTD at 25–28 (arguing that

Plaintiffs’ allegation that the DOGE leader lacks properly conferred authority is “a concession

that [he] is not exercising authority vested in an office ‘pursuant to the laws of the United

States’” (quoting Lucia, 585 U.S. at 245)). Defendants thus urge a formalist interpretation of the

Appointments Clause that “turn[s] on” (1) whether the appointed individual holds an office that

has been lawfully established, and (2) “the de jure—not de facto—authority that [the individual]

wields.” Id. at 27–28. In other words, Defendants appear to make the extraordinary argument

that an individual who holds an important office and wields immense power is not subject to the

Appointments Clause so long as the office was unlawfully created, and the power was

unlawfully seized.

As the court has already explained, “constitutional safeguards are not so easily evaded.”

New Mexico, 784 F. Supp. 3d at 200. To start, Defendants’ formalist interpretation is difficult to

square with guidance from the D.C. Circuit, which urges a more functionalist approach. See

Tucker, 676 F.3d at 1133 (“[I]t would seem anomalous if the Appointments Clause were

inapplicable to positions extant in the bureaucratic hierarchy, and to which Congress assigned

‘significant authority,’ merely because neither Congress nor the executive branch had formally

created the positions.”). Moreover, the implications of Defendants’ formalist interpretation are

disquieting. Under that interpretation, the President could evade Appointments Clause scrutiny

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by (1) usurping Congress’s power to create a principal office and assign it powers, and (2)

unilaterally appointing an official to that office without Senate confirmation. See Myers v.

United States, 272 U.S. 52, 130 (1926) (“[T]he power of appointment and removal cannot arise

until Congress creates the office and its duties and powers, and must accordingly be exercised

and limited only as Congress shall in the creation of the office prescribe.”).

The court will not countenance such a two-fold attack on Congress’s role in our system

of checks and balances. See Trump v. United States, 603 U.S. 593, 650 (2024) (Thomas, J.,

concurring) (“If Congress has not reached a consensus that a particular office should exist, the

Executive lacks the power to unilaterally create and then fill that office.”). Indeed, if the

President unilaterally creates a principal office, endows it with unlawful powers, and fills it

without Senate confirmation, that is more—not less—reason for Appointments Clause scrutiny.

See Freytag, 501 U.S. at 879 (emphasizing the judiciary’s role “in maintaining the constitutional

plan of separation of powers”) (quoting Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962))).

Defendants next argue that even if the head of DOGE directs agency officials to

terminate grants and fire employees, “it does not offend the Appointments Clause so long as the

duly appointed official has final authority over the implementation of the governmental action.”

MTD at 29 (quoting Andrade v. Regnery, 824 F.2d 1253, 1257 (D.C. Cir. 1987)). Defendants’

reliance on Andrade is misplaced. That case involved a reduction-in-force program that was

“conceived and planned” by an unappointed agency staffer but ratified by a properly appointed

official. Andrade, 824 F.2d at 1255–57. The D.C. Circuit held that even though the unappointed

staffer may have “had complete responsibility for crafting and executing the RIF,” the RIF did

not violate the Appointments Clause because a “duly appointed official” had “final authority”

over the RIF when it was implemented. Id. at 1257. The Circuit explained that “it is an

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everyday occurrence in . . . government for staff members to conceive and even carry out

policies for which duly appointed or elected officials take official responsibility.” Id. Here,

however, Plaintiffs do not allege that the head of DOGE is a subordinate staffer proposing plans

over which agency officials have final authority. To the contrary, Plaintiffs allege that the head

of DOGE is ordering agency officials to carry out his plans. Compl. ¶¶ 144, 146.

In sum, Plaintiffs have sufficiently alleged that the head of DOGE is an officer of the

United States, and a principal one at that. See New Mexico, 784 F. Supp. 3d at 199 (“A principal

officer is directed and supervised only by the President.” (citing Edmond, 520 U.S. at 663)); see

also Compl. ¶ 110 (alleging that the head of DOGE “answers only to the President of the United

States”). Because Plaintiffs further allege that this principal officer has not received Senate

confirmation, they have stated an Appointments Clause claim.

d. Ultra Vires

Plaintiffs have also stated a claim that DOGE Defendants are acting ultra vires—that is,

in excess of any lawfully conferred authority. See Compl. ¶¶ 117–21, 264–66, 323–25 (alleging

that DOGE Defendants are directing agency officials to terminate grants, cancel payments, cut

funding, and shutter agencies—and undertaking such action themselves—without lawful

authority).

An executive official’s power to act on the President’s behalf “must stem either from an

act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579, 585 (1952). “When an executive [official] acts ultra vires, courts are normally

available to reestablish the limits on his authority.” Chamber of Com. of U.S. v. Reich, 74 F.3d

1322, 1328 (D.C. Cir. 1996) (quoting Dart v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)).

Judicial review of ultra vires executive action typically must proceed through some statutory

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review mechanism. But “the absence of an express cause of action does not necessarily

foreclose all judicial review.” Changji Esquel Textile Co. v. Raimondo, 40 F.4th 716, 721 (D.C.

Cir. 2022) (cleaned up). In some cases, a plaintiff “‘may still be able to institute a non-statutory

review action,’ also known as ultra vires review,” by relying on the court’s equitable power to

enjoin unlawful executive action. Id. (quoting Trudeau v. FTC, 456 F.3d 178, 189 (D.C. Cir.

2006)). That said, a litigant “cannot . . . invok[e]” a federal court’s “equitable powers” to

“circumvent” limitations that Congress places, either express or implied, on the availability of

judicial review. Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 327–28 (2015) (“The

power of federal courts of equity to enjoin unlawful executive action is subject to express and

implied statutory limitations.”). Thus, an ultra vires claim will lie only where (1) the executive

commits an extreme legal error, (2) “there is no alternative procedure for review,” and (3)

equitable review is not precluded by statute. New Mexico, 784 F. Supp. 3d at 206; see also Nat’l

Treasury Emps. Union, 149 F.4th at 791.

Defendants first contend that Plaintiffs’ ultra vires allegations are “bare assertions” based

only on unsupported “information and belief” “that the Court need not credit.” MTD at 41. The

court disagrees. Plaintiffs have plausibly alleged that DOGE Defendants are ordering agency

officials to terminate grants and cut spending without any authority to do so. In support of their

allegations, Plaintiffs have pointed to public statements by the President, DOGE officials, and

other administration officials which support their allegations that DOGE has seized an expansive

role in the federal government. See, e.g., Compl. ¶¶ 133, 135, 151, 155–59, 162, 164–65, 172,

192. For example, a DOGE official stated publicly that “DOGE just TERMINATED a $2.3

MILLION contract” and that DOGE was “shutting [USAID] down.” Id. ¶¶ 158, 192. Plaintiffs

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have also pointed to evidence that supports their allegations that DOGE officials issue directives

to agency officials. See, e.g., id. ¶ 146.

Defendants next contend that Plaintiffs fail to state an ultra vires claim because they “fail

to identify any specific statute” that Defendants have violated. MTD at 43. It is true that

Plaintiffs do not identify specific statutory limitations that Defendants have exceeded. But

“[c]onduct in violation of specific statutory limitations ‘is just one example of an ultra vires

act—not the only example of an ultra vires action.’” New Mexico, 784 F. Supp. 3d at 206

(quoting Leopold v. Manger, 102 F.4th 491, 495 (D.C. Cir. 2024)). Here, Plaintiffs contend that

Defendants are exercising immense power without any grant of statutory authority whatsoever.

That is the sort of “extreme legal error” that can sustain a claim for ultra vires review. Nat’l

Treasury Emps. Union, 149 F.4th at 791.

Accordingly, Defendants’ reliance on Nuclear Regulatory Commission v. Texas, 605 U.S.

665 (2025) is misplaced. Defs.’ Notice of Suppl. Auth., ECF No. 105. There, the Supreme

Court addressed whether a non-party to a Commission licensing proceeding could bring an ultra

vires challenge to a licensing decision even though the Hobbs Act limited licensing challenges to

parties to the proceeding. The Court rejected the non-parties’ attempt to “dress up” as an ultra

vires challenge “a typical statutory-authority argument” that the Commission’s “general

authority to license storage of spent nuclear fuel does not extend to the licensing of private off-

site storage.” Nuclear Regul. Comm’n, 605 U.S. at 682. The Court held that ultra vires review

is available “only when an agency has taken action entirely in excess of its delegated powers and

contrary to a specific prohibition” in its grant of authority. Id. at 681. Defendants read this

holding too broadly; they contend that it precludes ultra vires review unless Plaintiffs can

demonstrate that Defendants violated a specific statutory prohibition. But the Supreme Court’s

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holding in Nuclear Regulatory Commission applies where an agency is alleged to have exceeded

a grant of statutory authority. Here, by contrast, Plaintiffs allege that Defendants are acting

without any grant of authority whatsoever. Nothing in Nuclear Regulatory Commission rules out

the availability of ultra vires review in such extraordinary circumstances. See Am. Sch. of

Magnetic Healing v. McAnnulty, 187 U.S. 94, 110 (1902) (upholding availability of ultra vires

review because “[o]therwise, the individual [would be] left to the absolutely uncontrolled and

arbitrary action of a public and administrative officer, whose action is unauthorized by any

law”).

Defendants fleetingly suggest that their conduct is authorized by 5 U.S.C. § 3161, which

provides that a “temporary organization” may be established by executive order “for a specific

period not in excess of three years for the purposes of performing a specific study or other

project.” See MTD at 43; see also Defs.’ Reply at 24–25. But it would stretch § 3161’s use of

the term “project” too far to find that it authorizes officials to terminate grants, fire federal

workers, and shutter agencies without any other source of statutory authority. See West Virginia

v. EPA, 597 U.S. 697, 721 (2022) (Congress does not delegate “sweeping and consequential”

authority over matters of great “economic and political significance” “in so cryptic a fashion.”

(cleaned up)). Thus, Defendants cannot invoke § 3161 in a last-ditch attempt to avoid ultra vires

review.

The court is also satisfied at this early stage of the proceedings that there is no other

“meaningful and adequate opportunity for judicial review” and no “clear and convincing

evidence that Congress intended” to preclude Plaintiffs’ ultra vires claim. Bd. of Governors of

Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43–44 (1991). Defendants do not point to some

other mechanism Plaintiffs could pursue to prospectively enjoin Defendants’ actions on the basis

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that they lack authority to carry out such action. Although review of past grant terminations may

be available under the Tucker Act, and DOGE’s other past actions may be reviewable under the

APA, those review schemes do not offer Plaintiffs a mechanism for seeking prospective

injunctive relief.

In sum, Plaintiffs have stated ultra vires and Appointments Clause claims, but they have

failed to state an APA claim or a freestanding separation of powers claim.

C. Expedited Discovery

Also before the court is the Nonprofit Plaintiffs’ Motion for Expedited Discovery. See

No. 25-cv-643, ECF No. 11. Because the D.C. Circuit indicated that this court must first resolve

Defendants’ Motion to Dismiss before it can order expedited discovery, see In re Musk, No. 25-

5072, 2025 WL 926608, at *1 (D.C. Cir. Mar. 26, 2025), this court deferred judgment on the

Motion for Expedited Discovery. Given that the court’s resolution of the Motion to Dismiss

narrows the scope of the case and affects Plaintiffs’ discovery requests and proposed timeline,

the court will DENY the Motion for Expedited Discovery without prejudice. Plaintiffs may

refile a revised motion in light of this decision.

IV. CONCLUSION

For the foregoing reasons, the court will GRANT Defendants’ Motion for Relief from

Local Civil Rule 7(n), ECF No. 87, and Plaintiffs’ Second Motion for Leave to Identify Declarants

by Pseudonym, ECF No. 98; GRANT in part and DENY in part Defendants’ Motion to Dismiss,

ECF No. 90; and DENY without prejudice Plaintiffs’ Motion for Expedited Discovery, No. 25-

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cv-643, ECF No. 11; and DENY AS MOOT the associated Motions for Leave to Identify

Declarants by Pseudonym, No. 25-cv-429, ECF Nos. 69, 72. A separate order will follow.

Date: March 23, 2026

Tanya S. Chutkan

TANYA S. CHUTKAN

United States District Judge

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