Judge extends order blocking USAID leave notices and evacuations

A federal judge in Washington, D.C., on Thursday extended a preexisting temporary restraining order blocking the U.S. Agency for International Development from placing thousands of employees on paid administrative leave, as he considers whether to impose a longer-term preliminary injunction.

Last week, the American Foreign Service Association and the American Federation of Government Employees sued President Trump and USAID leadership to try to halt the apparent decimation of the foreign aid agency. More than 2,000 mostly stateside employees were locked out of both the agency’s headquarters and computer systems, and another 2,000 mostly overseas workers were slated to be put on leave on Feb. 7.

The lawsuit alleges that the administration’s plans violate the constitutional separation of powers, the take care clause that tasks the president with faithfully executing federal law, and in multiple instances the Administrative Procedures Act. An amended complaint filed Thursday morning adds Oxfam, a foreign aid nonprofit, as a plaintiff in the suit.

At Thursday’s hearing before a courtroom filled with USAID employees, retirees and contractors, Karla Gilbride, an attorney representing the labor groups, warned that the agency’s efforts to prevent employees from working and blocking payment of both new and already incurred financial obligations are creating an “information vacuum” that threatens the safety of workers stationed in dangerous places around the globe.

“Payments are not going through, including [employees’] utilities, cell phone and Internet,” she said. “If this continues, and if the defendants continue to wreak havoc on the agency and gut it from within, this threat is only going to increase. The redirection of [agency leadership] to the State Department has led to the lines of communication breaking down.”

But U.S. District Judge Carl Nichols, a Trump appointee, repeatedly quizzed Gilbride about the unions’ standing to seek redress judicially, rather than first channeling their allegations through the Merit Systems Protection Board, Federal Labor Relations Authority or the Foreign Service Grievance System. Unions challenging President Trump’s policies, both this week and during his first term, have struggled to pass the so-called Thunder Basin test for bypassing administrative proceedings.

“The MSPB handles claims for things that have already occurred for the purposes of recompense, but here, where an entire agency is being decimated, the MSPB and other statutory schemes that the government invokes all take years to reach a conclusion,” Gilbride responded. “Under Thunder Basin, we have no meaningful review [through those avenues]. By the time the MSPB process is complete . . . many years may have passed, and there will no longer be a USAID for employees to return to.”

Eric Hamilton, an attorney with the Justice Department, argued that, despite Trump’s public statements that he wants to “close [USAID] down,” the agency is merely complying with an executive order mandating a 90-day pause on foreign aid. And he claimed that a letter Secretary of State Marco Rubio sent to Congress announcing said pause “checks the box” of consulting with the legislative branch, referring to the requirement in the fiscal 2024 appropriations law that the president consult with Congress before initiating any downsizing or reorganization of the aid agency.

“The president has authority over foreign aid, and on the appropriations language about reorganizing or redesigning the agency requiring consultation with Congress, we don’t think a reorganization has happened yet,” Hamilton said.

But Hamilton was unable to answer a myriad of questions surrounding what would happen to the non-salary benefits afforded to USAID workers overseas, such as paying for utilities and lodging or their continued access to security warning systems and other protections.

Gilbride responded to Hamilton’s assertions by suggesting that there is a fundamental disconnect between the documents the government has produced regarding the “funding pause” and what the administration is actually doing.

“There’s been a mismatch in the proceedings today between the words on paper and the actions being taken on the ground, which at best has sown fear and uncertainty about what’s next,” she said. “The defendants cite a ’90-day pause,’ but meanwhile contracts are being cancelled en masse in the hundreds. And there is a waiver process on paper, but in reality payments are not being made across the board.”