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It is never fun to be the bearer of bad news. Unfortunately, in a decision last week, the Supreme Court temporarily sided with the government in a dispute over the cancellation of almost $800 million in grants from the National Institute of Health (NIH). The Court ruled that while researchers and universities can continue challenging the anti-DEI policies behind these cancellations in regular federal courts, they cannot ask those courts to reinstate their lost funding.
Instead, claims about restoring terminated grants must go to a separate court—the Court of Federal Claims—which handles contract disputes against the federal government. In practice, this means that it has become much harder to win a grant termination case in District Court and that many judges will cite this decision as the reason why the case must be heard in the Federal Court of Claims.
All of the lawyers at L4GG, SELC, Earthjustice, Public Rights Project and other organizations are thinking through the full ramifications of this together, and we will provide you with updates soon. For now, we are still waiting on other rulings to determine the full gravity of this decision, but suffice it to say that this is not good news.
Practically, this has a few immediate implications:
1. You do not need to do anything differently right now.
2. If you have received a termination letter, we highly recommend that you join our webinar and office hours this Wednesday, August 27, 12:30-2pm eastern, to hear any updates in our thinking and learn about things you can be doing right now to preserve your rights. Register here ASAP.
3. The Supreme Court ruling has already been submitted to the judges by the federal government in various court decisions involving terminated grants (e.g., the Section 138 EJ Class Action lawsuit), which may cause slight delays in receiving rulings as those judges review this new development.
4. Our work to support the legal implementation of billions of dollars of critical environmental justice, energy, and climate funds will continue.
5. DO NOT LOSE HEART. This is a tough loss, but we may lose the battle yet win the war.
Notwithstanding this unfortunate and—in our view—misguided decision, we will leave you with a few positive points:
– Other District Courts continue to reinstate grants.
– There was a great ruling in San Francisco reinstating National Endowment for the Humanities grants the same day that the Supreme Court decision came out.
– There is still a pathway to justice; it’s just a little harder to go down. But most of you know exactly how to forge a new path, and EPN and L4GG will be with you every step of the way as we navigate potential ways for you to push back, receive relief, AND continue to focus on your mission.
Meanwhile, be sure to join us Wednesday to strategize and be in community with all of us.
AND, if you missed our Endangerment Finding comments training last week, please sign up to join us Tuesday, August 26th, at 1pm eastern.