The "contract case" wrench that SCOTUS conservatives gave DOJ to defend Trump

The Justice Department is using a jurisdictional shadow docket decision to try and prevent rulings on the merits in lawsuits challenging Trump administration actions.

U.S. District Judge Christopher Cooper issued a preliminary injunction on Wednesday blocking the Justice Department from cancelling several DOJ grants administered by the American Bar Association‘s Commission on Domestic and Sexual Violence. In his opinion, Cooper found that the cancellations were likely unconstitutional retaliation by DOJ under the First Amendment for the ABA suing the the Trump administration.

As Cooper, an Obama appointee, put it, this was not especially difficult to conclude regarding the grants cancelled by the Justice Depart’s Office on Violence Against Women.

Beginning with Deputy Attorney General Todd Blanche’s April 9 memorandum — previously published at Law Dork — barring Justice Department lawyers from, as Cooper put it, “participating in events sponsored by the American Bar Association (“ABA”) on official time,” he continued:

The reason, Blanche candidly explained, was that the ABA had recently joined a lawsuit against the Trump Administration. The next day, DOJ cancelled a series of grants with the ABA that funded services to victims of domestic and sexual violence. The only explanation offered for the cancellation was a terse statement indicating that the grants “no longer effectuate[] . . . [DOJ] priorities.” Connecting these two rather large dots, the ABA promptly filed suit.

As Cooper later noted in his opinion, “The government has offered no nonretaliatory explanation for why it continues to fund these other OVW grantees after terminating the ABA’s grants, or why these other grantees’ projects still effectuate DOJ’s priorities while the ABA’s do not.”

As such, and after considering the relevant preliminary injunction factors, Cooper granted a preliminary injunction on the ABA’s First Amendment retaliation claim.

As part of the court’s order implementing that decision, Cooper blocked the government “from enforcing or otherwise giving effect to the termination of the five grants administered by the American Bar Association’s Commission on Domestic and Sexual Violence that were active as of April 9, 2025.” Additionally, he ordered that “Defendants and their agents take all steps necessary to ensure that the Department of Justice disburses funds on the covered grants in the customary manner and in customary timeframes.“

It’s likely that the Justice Department will appeal the order on that front specifically. Why?

Although obviously important on its own, Cooper’s ruling comes in the aftermath of a 5-4 U.S. Supreme Court shadow-docket ruling from April 4 that has raised significant questions about where and when challenges to Trump administration policies that involve outside contracts — most policies, at some point, involve contracts — are allowed to be brought in federal district courts.

In the Supreme Court case, Department of Education et al. v. California et al., the court blocked a district court’s temporary restraining order requiring the Education Department to stop a mass-cancellation of grants in a certain program and continue paying out under those grants. The case was brought under the Administrative Procedure Act, a law that requires agencies to take certain steps before implementing policy changes in applicable circumstances. Here, the Justice Department does not argue that the mass-cancellation was proper. Instead, it argued that the case should have been brought under the Tucker Act, not the APA, because it ultimately was a contract dispute. As such, the case should brought in the Court of Federal Claims.

Justices Clarence Thomas, Sam Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett went along with the argument in a brief, unsigned opinion.

“[A] district court’s jurisdiction ‘is not barred by the possibility’ that an order setting aside an agency’s action may result in the disbursement of funds,” the court acknowledged, quoting from a 1988 case involving the APA. “But as we have recognized, the APA’s limited waiver of [sovereign] immunity does not extend to orders ‘to enforce a contractual obligation to pay money’ along the lines of what the District Court ordered here,” the court continued, quoting from a 2002 decision that had nothing to do with the APA.

What exactly does that mean? What are the contours? When does which rule apply?

The court did not say, and that is the second-level problem here beyond any question about the correctness of the court’s order itself. The dissents let us know the issues this would likely cause.

Chief Justice Roberts noted that he would have denied the request, Justices Elena Kagan and Ketanji Brown Jackson wrote dissenting opinions, and Justice Sonia Sotomayor joined Jackson’s dissent.

The decision was issued, Kagan wrote, “with barebones briefing, no argument, and scarce time for reflection.“ Moreover, she noted, “nothing about this case demanded our immediate intervention.”

Jackson was sharper. “Instead of playing remedy police in this nascent case, I would permit the litigation to proceed in the lower courts as usual,“ she wrote, noting that that would surely be so were the government not the party seeking relief. To the central issue, Jackson noted the Justice Department’s decision not to focus on the merits of the case.

“What better way to avoid prompt consideration of the Plaintiff States’ serious claims about the unlawful arbitrariness of the Government’s conduct than to demand that jurists turn away from those core questions and entertain a host of side issues about the power of the District Court on an ‘emergency’ basis?” Jackson posited rhetorically. “Children, pets, and magicians might find pleasure in the clever use of such shiny-object tactics. But a court of law should not be so easily distracted.”

In a footnote that also serves to describe the five-and-a-half weeks since the court’s order, Jackson elucidated further:

Needless to say, they were right. The unsigned three-page per curiam decision has caused confusion. But, and as Jackson suggested was likely intended, it also has proven to be a powerful new tool in Justice Department lawyers’ uphill efforts to defend lawless actions from across the Trump administration.

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This issue has now come up repeatedly in the litigation over U.S. Agency for Global Media cuts by Kari Lake to the Voice of America and other outlets, with the government arguing that the cases have to be brought in the Court of Federal Claims under the Tucker Act. After losing on the point at the district court, a three-judge motions panel of the U.S. Court of Appeals for the D.C. Circuit stayed multiple injunctions and one TRO issued below on a 2-1 vote. That panel’s orders, however, were short-lived, as the full appeals court stepped in to stay those appellate orders.

All of that procedure aside, the three-judge motions panel’s orders show how broadly the Supreme Court’s order is being used by the Justice Department and, for a moment, how that was accepted by two Trump appointees, Judges Gregory Katsas and Neomi Rao.

Of the stations at issue — including Radio Free Asia and Middle East Broadcasting Networks — the majority issued an order noting, “Congress created a contractual scheme for allocating funds to the grantees. It authorizes USAGM to fund RFA, MBN, and other networks through ‘grants and cooperative agreements.’ … These exchanges of promises—reflecting offer, acceptance, consideration, mutuality of intent, and action by an official with authority to bind the government—constitute government contracts for Tucker Act purposes.”

Judge Cornelia Pillard, dissenting on that three-judge panel, wrote, “That misapprehends the plaintiffs’ case. Their claim of entitlement rests on USAGM’s alleged contravention of applicable statutory and constitutional constraints—not the terms of any particular contract.”

In one of the cases, Pillard, an Obama appointee, explained how far DOJ was seeking to push the Supreme Court’s April order. Of Radio Free Europe/Radio Liberty’s case, she wrote, “Not only does RFE/RL’s complaint make no contract claim, but RFE/RL has no contract that it could be seeking to enforce ‘disguised’ as something else.”

The Justice Department also raised the Tucker Act issue before U.S. District Judge Amir Ali in the case over the Trump administration’s early action cancelling USAID and State Department foreign aid funding. This, despite the Supreme Court already passing once on DOJ’s entreaty to block Ali’s initial orders in the case.

The case had proceeded after that initial Supreme Court order, with Ali issuing a preliminary injunction in the case and DOJ appealing that to the D.C. Circuit. After the Supreme Court’s order in the Education Department case, however, DOJ sought an “indicative ruling” from Ali — essentially, a tentative ruling that could prevent the need for further litigation — that, if the case came back to Ali, he would “dissolve the provision of the preliminary injunction mandating monetary payments to non-Plaintiffs for work completed prior to February 13, 2025.“ This part of the injunction, DOJ claimed, was based on “an assertion of subject-matter jurisdiction by this Court that the California Court has now rejected.”

Not so fast, Ali, a Biden appointee, ruled on Tuesday. In his order rejecting DOJ’s request, Ali found, “Unlike this case, the APA claim in Department of Education was premised on the terms of individual grants. … That cannot be said here.” He continued:

As the Court has repeatedly stressed, the agency actions enjoined here are Defendants’ blanket directives to suspend congressionally appropriated foreign aid. The Court did not base its ruling on the terms of individual awards—much to the contrary, the Court understood Plaintiffs to “assert APA claims to invalidate agency policy directives, regardless of any breach of any agreement or the extent of their losses.”

These issues have arisen in other cases in the wake of the Supreme Court’s ruling across the country — from a case over legal representation for unaccompanied children facing hearings in immigration courts to a case over Trump’s effort to dramatically downsize several congressionally-authorized agencies, including the Institute of Museum and Library Services.

The shadow docket — with its “barebones briefing, no argument, and scarce time for reflection,” as Kagan put it — rarely leads to helpful decisions for lower courts.

More alarming, though, and as Jackson presciently warned, it can — and apparently does — provide a way for the Justice Department to “avoid prompt consideration of … serious claims about the unlawful arbitrariness of the Government’s conduct” by granting it new procedural arguments to raise, even if they are ultimately rejected.

Sometimes, pushing the argument aside is easier than other times.

In the ABA case, for example, Cooper noted, “There was no constitutional claim” in the Education Department case. In the ABA case, though, “the ABA’s constitutional claim flows directly from the First Amendment. Accordingly, the Tucker Act poses no obstacle to the Court’s jurisdiction to consider the ABA’s First Amendment retaliation claim.“

And yet, thanks to a 5-4 Supreme Court order from a month earlier, DOJ still tried.