A group of plaintiffs asked a federal judge on Saturday to vacate the injunction he had previously entered in their favor against the Trump Administration that halted the implementation of the president’s directives to end DEI initiatives. The plaintiffs’ move came after a federal appellate court stayed the injunction, signaling a likely reversal of the injunction on appeal and a win for Trump. This motion represents the second effort within as many weeks by litigants to game the judicial system to avoid losing to the president on appeal. The courts should refuse to play along, including in this case by denying the motion to vacate the injunction.
On Saturday, the plaintiffs in National Ass’n of Diversity Officers in Higher Ed. v. Trump, filed a Motion to Vacate Preliminary Injunction Order in a federal court in Maryland. The plaintiffs in that case consisted of a national association of diversity officers, an organization representing university professors, a national organization of restaurant workers, and the Mayor and City Council of Baltimore.
In early February, these plaintiffs had sued Donald Trump and a slew of federal agencies, challenging the executive orders the president issued to halt DEI efforts and seeking to enjoin the federal agencies from implementing those executive orders.
On February 21, 2024, Judge Adam Abelson, a Joe Biden appointee, entered a preliminary injunction in favor of the plaintiffs. In that injunction, Judge Abelson held the Trump Administration could not “pause, freeze, impede, block, cancel, or terminate any awards, contracts or obligations . . . or change the terms of any Current Obligation,” based on the anti-DEI executive orders. The preliminary injunction further prohibited the Trump Administration from requiring any recipient of federal funds to certify in a grant or contract “that it does not operate any programs promoting DEI that violate any applicable Federal antidiscrimination laws.” Finally, the court enjoined the Trump Administration from taking any enforcement actions against grantees who maintain DEI programs in violation of the certification.
Judge Abelson later clarified that his preliminary injunction applied broadly and beyond the named defendants: The preliminary injunction applies to and binds all “federal executive branch agencies, departments, and commissions, and their heads, officers, agents, and subdivisions,” the court explained in a supplemental order earlier this month.
The Trump Administration promptly appealed the preliminary injunction while simultaneously seeking a stay from Judge Abelson and from the Fourth Circuit Court of Appeals. Judge Abelson refused to stay the preliminary injunction but on March 14, 2024, the Fourth Circuit granted the stay, stating, “we agree with the government that it has satisfied the factors for a stay under Nken v. Holder . . .”
The stay of the lower court’s injunction means that the Trump Administration can continue to implement the president’s executive orders by terminating DEI grants, mandating contractors and grantees certify they will not violate federal anti-discrimination law with DEI programs, and enforcing those certifications. The stay, however, means much more: It means that the Trump Administration is very likely to win on appeal.
While the Fourth Circuit didn’t say so expressly, a stay is only appropriate under Nken — the case cited by the appellate court — if the party seeking the stay, here, the Trump Administration, “has made a strong showing that he is likely to succeed on the merits . . . ” Thus, once the Fourth Circuit granted the stay, the National Association of Diversity Officers and its fellow plaintiffs knew that they were likely to lose on appeal.
A legal loss is never pleasant, but there is more at stake than these plaintiffs’ claims: An adverse decision by the federal appellate court would also establish binding precedent on the lower courts in the Fourth Circuit, which includes both the Maryland court that granted the stay in this case and other federal courts in Virginia, West Virginia, and North and South Carolina. Further, while federal lower courts in other circuits and the other federal appellate courts are not bound by decisions from the Fourth Circuit, judges often rely on out-of-circuit or sister-circuit precedent in deciding cases before them — especially in cases involving issues of first impression, as many of the cases waged against the Trump Administration are.
Saturday’s Motion to Vacate the Preliminary Injunction Order filed by the plaintiffs in the district court seeks to thwart any adverse decision on appeal: If the court vacates the preliminary injunction, the plaintiffs will argue the appeal is moot and seek dismissal of the appeal from the Fourth Circuit.
The National Association of Diversity Officers and the other plaintiffs aren’t abandoning their claims, though. Rather, the plaintiffs argue they will seek additional relief based on developments since the court entered the preliminary injunction. Here, the plaintiffs posit that they have new information to present to the court that was not available earlier.
The Trump Administration opposes vacatur of the preliminary injunction and maintains that since it has already appealed the injunction, the court lacks jurisdiction to vacate the injunction as required by the plaintiffs.
Case law supports the Trump Administration’s position, holding that courts are “divested of jurisdiction” to lift preliminary injunction once an appeal has been filed. Recognizing this fact, the National Association of Diversity Officers and its co-plaintiffs invoke a rarely used federal procedural rule, seeking an “indicative ruling.” Under this procedure, the plaintiffs ask Judge Abelson to, if he concludes he lacks power to vacate the injunction, enter an “indicative ruling” telling the Fourth Circuit that if it were to remand the case back to the district court, he will vacate the preliminary injunction.
Given Judge Abelson’s willingness to enter an order for the plaintiffs that bound not merely the named defendants, but every federal agency — something far beyond his authority — it would not be surprising if the Biden appointee went along with the ploy and issued an “indicative ruling” stating his intent to vacate the injunction.
But the Fourth Circuit doesn’t have to play along, and it shouldn’t. Rather, the court of appeals needs to reject the plaintiffs’ efforts to avoid an adverse decision: that is the only way these 100-plus lawsuits against the Trump Administration will resolve in any semblance of an order.
Likewise, the D.C. Circuit should squelch the gaming of the judicial system attempted by former Special Counsel Hampton Dellinger in his case against the Trump Administration. Dellinger, like the plaintiffs in National Ass’n of Diversity Officers in Higher Ed. v. Trump, had sued the Trump Administration and obtained a preliminary injunction. In Dellinger’s case, he challenged the president’s firing of him as special counsel. The district court ordered Dellinger reinstated and also entered a preliminary injunction requiring others in the Trump Administration to continue to treat him as Special Counsel and to refrain from any interference in his execution of Special Counsel functions.
The Trump Administration appealed to the D.C. Circuit and obtained a stay from the appellate court, meaning Dellinger remained fired during the pendency of the appeal. Soon after, Dellinger sent the D.C. Circuit a letter saying the appellate court did not need to issue any opinion explaining why it had granted a stay — something the court had promised was forthcoming — because he no longer was pursuing his case.
Without addressing Dellinger’s letter, the D.C. Circuit issued its opinion explaining the basis for the stay. Dellinger then asked D.C. Circuit to vacate its opinion, filing a Motion to Dismiss that argued his appeal was moot because he no longer wished to pursue his case against the Trump Administration. In other words, Dellinger wanted the appellate court to erase the precedent it has issued in favor of the Trump Administration.
The D.C. Circuit has yet to rule on Dellinger’s Motion to Dismiss, but the Trump Administration has properly pointed out that there is no basis to dismiss the appeal because Dellinger did not dismiss his lawsuit.
There are clear procedural rules that govern how to voluntarily dismiss a case and that process takes place in the lower court — not by a motion in the appellate court saying, in essence, I decided I don’t want to litigate this case anymore. What Dellinger wants, though, is much different: He wants to do away with the D.C. Circuit precedent issued in Trump’s favor.
It is unclear why the D.C. Circuit has allowed Dellinger’s Motion to Dismiss to linger, as opposed to denying it with a note reprimanding his attorneys to follow the controlling procedures for dismissing a case. But by failing to immediately nix Dellinger’s efforts to manipulate the court, we are now seeing other litigants, such as those in the Maryland case challenging the termination of DEI initiatives, trying similar tacks.
The appellate courts need to make clear to litigants that such jockeying will not work, and then they need to put an end to the outrageous preliminary injunctions. And if they refuse to do so, the Supreme Court needs to end its delusional view that it is maintaining the reputation of the judicial branch by allowing the normal process to play out in these politically charged cases—because there is nothing normal about the lower courts’ efforts to unconstitutionally control the Executive Branch.
Margot Cleveland is an investigative journalist and legal analyst and serves as The Federalist’s senior legal correspondent. Margot’s work has been published at The Wall Street Journal, The American Spectator, the New Criterion, National Review Online, Townhall.com, the Daily Signal, USA Today, and the Detroit Free Press.
She is also a regular guest on nationally syndicated radio programs and on Fox News, Fox Business, and Newsmax. Cleveland is a lawyer and a graduate of the Notre Dame Law School, where she earned the Hoynes Prize—the law school’s highest honor. She later served for nearly 25 years as a permanent law clerk for a federal appellate judge on the Seventh Circuit Court of Appeals.
Cleveland is a former full-time university faculty member and now teaches as an adjunct from time to time. Cleveland is also of counsel for the New Civil Liberties Alliance.
Cleveland is on Twitter at @ProfMJCleveland where you can read more about her greatest accomplishments—her dear husband and dear son. The views expressed here are those of Cleveland in her private capacity.
