National Association of Diversity Officers in Higher Education et al v. Trump et al

Filing 66

MEMORANDUM OPINION. Signed by Judge Adam B Abelson on 3/10/2025. (ols, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
NATIONAL ASSOCIATION OF
DIVERSITY OFFICERS IN HIGHER
EDUCATION, et al.,

Case No. 25-cv-0333-ABA

Plaintiffs,
v.
DONALD J. TRUMP, et al.,
Defendants

MEMORANDUM OPINION
The Court entered a Preliminary Injunction on February 21, 2025. ECF No. 45.
The Preliminary Injunction described the “Enjoined Parties” as “Defendants other than
the President, and other persons who are in active concert or participation with
Defendants.” Id. ¶ 3. Defendants, as identified in Plaintiffs’ complaint, are President
Trump in his official capacity, the Office of Management and Budget, the Departments
of Justice, Health and Human Services, Education, Labor, Interior, Commerce,
Agriculture, Energy, and Transportation along with the heads of those agencies (in their
official capacities), and the National Science Foundation.
Plaintiffs have filed a motion seeking “clarification” on whether the “Enjoined
Parties” include federal executive agencies, departments, and commissions (and their
subdivisions, agents, and officers) that are not named as defendants in this case. ECF
No. 50-1 (“Clarification Motion”) at 3. Defendants oppose the motion and argue that (1)
the Court lacks jurisdiction to consider the Clarification Motion because Defendants
have filed a notice of appeal; and (2) Plaintiffs’ interpretation, or requested clarification,
of the Preliminary Injunction is inconsistent with Federal Rule of Civil Procedure 65(d),
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Article III of the U.S. Constitution, and traditional principles of equity and the principles
underlying preliminary injunctive relief. See ECF No. 62.
For the reasons set forth below, the Court will grant the Clarification Motion. The
Court clarifies, pursuant to Federal Rule of Civil Procedure 65(d)(2)(B), as follows and
as set forth in the accompanying Clarified Preliminary Injunction (March 10, 2025) at
paragraph 3:
The Preliminary Injunction applies to and binds Defendants
other than the President, as well as all other federal executive
branch agencies, departments, and commissions, and their
heads, officers, agents, and subdivisions directed pursuant to
the J20 and J21 Orders (collectively, the “Enjoined Parties”).
I.

JURISDICTION
Generally, the timely filing of a notice of appeal transfers jurisdiction to the court

of appeals and “divests the district court of its control over those aspects of the case
involved in the appeal.” Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58
(1982); Doe v. Pub. Citizen, 749 F.3d 246, 258 (4th Cir. 2014). An exception to this
general rule is when the district court “take[s] action that aids the appellate process.”
Pub. Citizen, 749 F.3d at 258 (citing Grand Jury Proceedings Under Seal v. United
States, 947 F.2d 1188, 1190 (4th Cir. 1991)). Under this exception, a district court may
modify an injunction to clarify it in order to “reliev[e] [the appellate court] from
considering the substance of an issue begotten merely from imprecise wording in the
injunction.” Lytle v. Griffith, 240 F.3d 404, 407 n.2 (4th Cir. 2001).
In Lytle, while an appeal was pending, the district court replaced a reference to
“the Commonwealth” to specify who was covered by the injunction (there, the Governor
of the Commonwealth of Virginia, and the Norfolk Commonwealth Attorney). Id.

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Similarly, in Dixon v. Edwards, the Fourth Circuit held that, while an appeal was
pending, the district court could modify an injunction barring an individual from
“officiat[ing] at religious services on or near the grounds” of a church by revising the
order to specify that the individual was “permitted to conduct religious services at least
300 feet distant from the perimeter” of the church. 290 F.3d 699, 709 & n.14 (4th Cir.
2001).
Here, Plaintiffs do not request a substantive amendment to the Preliminary
Injunction, but rather a clarification regarding which agencies are encompassed among
“Enjoined Parties.” The requested clarification is comparable to the modified orders in
Lytle and Dixon. Further, as explained below, the Court’s Memorandum Opinion that
accompanied the Preliminary Injunction cited actions by agencies that were not named
as defendants to explain the rationale for the Preliminary Injunction, and thus
clarification is further justified, and serves to “aid[] the appellate process,” Pub. Citizen,
749 F.3d at 258, “in light of a potential inconsistency between the language of the
Preliminary Injunction and that of the accompanying Memorandum Opinion.” See Am.
Coll. of Obstetricians and Gynecologists ex rel. Council of Univ. Chairs of Obstetrics &
Gynecology v. U.S. Food & Drug Admin., No. 20-cv-1320-TDC, 2020 WL 8167535, at *1
(D. Md. Aug. 19, 2020). Therefore, this Court may rule on the Clarification Motion and
clarify the terms of the Preliminary Injunction. 1

1 Because the clarified preliminary injunction replaces the “in active concert or

participation” language from the February 21, 2025 order with clearer wording
consistent with the Court’s February 21, 2025 memorandum opinion, the Court need
not reach the issues raised by the parties as to what would render a non-named federal
executive agency “in active concert or participation” with a named Defendant.
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II.

CLARIFICATION
Plaintiffs’ complaint challenges as facially unconstitutional three executive order

provisions, set forth in the Preliminary Injunction and referred to therein as the
Termination Provision, Certification Provision, and Enforcement Threat Provision. ECF
No. 45 ¶ 2. As the Court explained in its February 21 Memorandum Opinion, those
provisions run afoul of the free speech protections of the First Amendment, and the due
process protections of the Fifth Amendment, and do so on their face. ECF No. 44 at 3855.
Defendants acknowledge that the President was a named defendant in this case;
that the Challenged Provisions were directives to all executive agencies, departments,
and commissions; and that the Court has held that those directives are unconstitutional
on their face. ECF No. 62 at 3. Nonetheless, Defendants argue that the Court should
only preliminarily enjoin the actions of the specific departments, agencies and
commissions that Plaintiffs named as additional defendants. Id. at 14. They argue that
including other departments, agencies and commissions that are under the President’s
direction, and were in fact directed by the Challenged Provisions, is inconsistent with
Article III’s standing requirement because it would bind “nonparties who would
[otherwise] not be bound by the judgment.” Id. at 13 (citing Haaland v. Brackeen, 599
U.S. 255, 293 (2023)). Defendants similarly argue that this kind of injunction is
inconsistent with traditional principles of equity and preliminary injunctive relief. Id.
The Court has previously explained why this is the proper scope of an injunction
given the claims, the nature of the challenged provisions, and the ways in which
Plaintiffs have shown a likelihood that the provisions are facially unconstitutional. See

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ECF No. 44 at 60-62; ECF No. 61 at 10. To reiterate and further explain, there are three
principal reasons.
First, Plaintiffs have shown a likelihood of success on the merits that the
Termination and Certification Provisions, and the Enforcement Threat Provision in
part, on their face constitute unlawful content-based and viewpoint-discriminatory
restrictions on speech in violation of the First Amendment, and on their face also run
afoul of due process because of their vagueness. ECF No. 44 at 38-55; see also ECF No.
61 at 1-2 (order denying stay pending appeal). In particular, the Court held that
Plaintiffs have shown a likelihood of success on the merits as follows:
•

The Termination Provision, as to which Plaintiffs brought facial challenges
under the Spending Clause (Count 1) and the Fifth Amendment (Count 2),
“invites arbitrary and discriminatory enforcement” and “offers insufficient
notice to current grantees about whether and how they can adapt their
conduct to avoid termination of their grants or contracts,” and in so doing
facially violates the “‘more stringent vagueness test’” that applies when a law
“‘interferes with the right of free speech or of association.’” ECF No. 44 at 3839 (quoting Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489,
499 (1982)).

•

The Certification Provision, as to which Plaintiffs brought facial challenges
under the First Amendment (Count 5) and separation of powers (Count 6),
“operates as a facially viewpoint-discriminatory order,” “constitutes a contentbased restriction on the speech rights of federal contractors and grantees . . .
because such restriction expands to all of those contractors’ and grantees
work, whether funded by the government or not,” and also “unconstitutionally
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restricts, and retaliates against, contractors’ and grantees’ free speech rights
even within the scope of the pertinent programs.” Id. at 45 & 47-48.
•

The Enforcement Threat Provision, as to which Plaintiffs brought facial
challenges under the First Amendment (Count 4) and Fifth Amendment
(Count 3), violates the First Amendment because it “threatens . . .
enforcement actions” using “a content-based restriction on protected speech
that would not pass the high bar of strict scrutiny” and further constitutes an
“unlawful viewpoint-based restriction on protected speech.” Id. at 50, 52. And
it violates the Fifth Amendment because, among other things, while
“rescind[ing] swaths of existing executive branch guidance on what the
executive branch considers the federal civil rights laws to require, prohibit, or
allow,” it gives no “guidance on what the new administration considers to
constitute ‘illegal DEI discrimination and preferences,’ J21 Order § 4(b)(iv),
or ‘[p]romoting diversity,’ id. § 3(b)(ii), or ‘illegal DEI and DEIA policies,’ id. §
1, or what types of ‘DEI programs or principles’ the new administration
considers ‘illegal’ and is seeking to ‘deter,’ id. § 4(b)(iii).” Id. at 53-54.

Each of those ways in which Plaintiffs have shown that the Challenged Provisions
are unconstitutional are deficiencies with those provisions on their face. Any executive
agency, department or commission acting pursuant to the Challenged Provisions would
be acting pursuant to an order that Plaintiffs have shown a strong likelihood of success
in establishing is unconstitutional on its face.
Second, the Termination and Certification Provisions are directives the President
issued to all executive agencies, departments and commissions, J20 Order § 2(a)(i); J21
Order § 3(b)(iv), and the Enforcement Threat Provision was an express directive by the
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President to the Department of Justice. J21 Order § 4(b)(iii). Defendants named in
Plaintiffs’ complaint include the President in his official capacity. ECF No. 1 ¶ 22. The
Preliminary Injunction—both original and as clarified—is tailored to the executive
branch agencies, departments and commissions that were directed, and have acted or
may act, pursuant to the President’s directives in the Challenged Provisions of the J20
and J21 Orders. See, e.g., Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561
U.S. 477, 513-14 (2010) (holding that the President is responsible and accountable for
executive agencies that are executing the laws); Seila Law LLC v. Consumer Fin. Prot.
Bureau, 591 U.S. 197, 203-204 (2020) (same).
Third, enjoining only the agencies that Plaintiffs specifically named, and ignoring
the fact that the President (who issued the Challenged Provisions) is a named defendant,
would fail to provide complete relief to Plaintiffs and their members themselves
because, among other things, they are at risk of their speech being chilled by many nonnamed federal executive agencies, as Plaintiffs explain. ECF No. 65 at 13. Artificially
limiting the preliminary injunction in the way Defendants propose also would make the
termination status of a federal grant, or the requirement to certify compliance by a
federal contractor, turn on which federal executive agency the grantee or contractor
relies on for current or future federal funding—even though the agencies would be
acting pursuant to the exact same Challenged Provisions—thereby “causing ‘inequitable
treatment’ in an area in which uniformity is needed.” CASA, Inc. v. Maribel, No. 251153, 2025 WL 654902, at *1 (4th Cir. Feb. 28, 2025) (quoting Roe v. Dep’t. of Defense,
947 F.3d 207, 231-32 (4th Cir. 2020) and HIAS, Inc. v. Trump, 985 F.3d 309, 326-27
(4th Cir. 2021)).

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III.

CONCLUSION
For these reasons and those previously articulated, the Court will issue a separate

order clarifying that the Preliminary Injunction, consistent with the Court’s reasoning in
the February 21, 2025 Memorandum Opinion, applies as follows:
The Preliminary Injunction applies to and binds Defendants
other than the President, as well as all other federal executive
branch agencies, departments, and commissions, and their
heads, officers, agents, and subdivisions directed pursuant to
the J20 and J21 Orders (collectively, the “Enjoined Parties”).

/s/
___________________________

Date: March 10, 2025

Adam B. Abelson
United States District Judge

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