Labor & Employment Law Daily Wrap Up, COVERAGE, LIABILITY—D.D.C.: Appointments Clause, ultra vires claims asserted against DOGE allowed to proceed, (Mar 24, 2026)

By Todd Harrison, J.D.

“…Defendants appear to make the extraordinary argument that an individual who holds an important office and wields immense power is not subject to the Appointments Clause so long as the office was unlawfully created, and the power was unlawfully seized.”

Denying in part the government’s motion to dismiss a lawsuit brought by a coalition of nonprofit organizations alleging that DOGE has unlawfully assumed an expansive role in the federal government, a federal court in the District of Columbia found that the plaintiffs sufficiently alleged that the head of DOGE exercises significant authority and that the defendants were exercising immense power without any grant of statutory authority whatsoever. The court did grant the government’s motion with respect to the plaintiffs’ separation of powers and APA claims, finding the APA claim failed to adequately identify specific agency action and the separation of powers claims were premised on alleged violations of statutes appropriating funds and creating agencies (State of New Mexico v. Musk, Nos. 25-cv-429 (TSC) and 25-cv-643 (TSC) (D.D.C. Mar. 23, 2026)).

Lawsuit. In March 2025, the court consolidated this case brought by nonprofit plaintiffs with a similar challenge to DOGE’s activities brought by a coalition of states led by New Mexico. This lawsuit was filed against the U.S. DOGE Service and two individuals associated with DOGE (DOGE Defendants), as well as 16 federal agencies and the heads of those agencies (Agency Defendants).

The plaintiffs’ complaint asserts four claims: (1) the DOGE Defendants are acting ultra vires in terminating grants and firing federal workers without lawful authority; (2) the DOGE Defendants are violating the separation of powers by cancelling grants and firing workers for which Congress has provided appropriations; (3) Elon Musk, as head of DOGE, is violating the Appointments Clause by wielding the power of a principal officer without having received Senate confirmation; and (4) the Agency Defendants have taken unlawful agency action in violation of the Administrative Procedure Act (APA).

Here, the defendants moved to dismiss for lack of subject matter jurisdiction or, in the alternative, for failure to state a claim.

Tucker Act. First, the court addressed the issue of subject matter jurisdiction. The court agreed with the defendants that it lacked jurisdiction over past grant terminations and employment claims, but the Tucker Act did not divest the court of as much jurisdiction as the defendants had asserted.

District courts still have jurisdiction to vacate unlawful policies concerning grant terminations, explained the court, and the Tucker Act does not deprive the court of jurisdiction to vacate and prospectively enjoin unlawful policies concerning such terminations or decisions to cut funds appropriated by Congress—decisions which do not sound in contract.

Federal employee firings. Next, the defendants contended that the Civil Service Reform Act (CSRA) displaces the court’s jurisdiction over the plaintiffs’ claims insofar as they challenged DOGE’s mass firing of federal workers. Noting that the MSPB or FLRA could reinstate fired workers on nonconstitutional grounds, the court agreed that the CSRA displaced its jurisdiction over the plaintiffs’ claims insofar as they concerned employment issues.

Standing. Turning to the defendants’ argument that the plaintiffs lacked Article III standing, the court rejected the nonprofit plaintiffs’ argument that they need not establish their own standing because the court had already held that the state plaintiffs had adequately pled standing. Because each nonprofit plaintiff sought injunctive relief that covers them individually and not the state plaintiffs, each nonprofit plaintiff must establish their own standing, said the court.

On this point, the court found that all four nonprofit plaintiffs had pled associational standing, pointing to damage resulting from DOGE cuts that were fairly traceable to the agency.

Mootness. After the defendants moved to dismiss, Elon Musk left government. The defendants argued that his departure mooted the Appointments Clause claim. The court disagreed, noting that Musk’s departure has not resulted in the cessation of DOGE’s alleged ongoing cuts to federal programs. Further, if the plaintiffs prevail on their claim that Musk was not constitutionally appointed and therefore lacked authority to exercise the power of a principal officer, the court could vacate Musk-initiated policies or cuts that are causing the plaintiffs ongoing harm.

APA claim. Having established subject matter jurisdiction, the court considered the defendants’ argument that the plaintiffs had failed to state a claim, beginning with the APA claim. The plaintiffs brought a single APA count broadly alleging that the Agency Defendants’ termination of grants, contracts, and federal workers, and the “dismantling of federal executive departments and agencies” was arbitrary, capricious, and contrary to law, and must be set aside.

The court reiterated that it lacked jurisdiction over this claim insofar as it challenged past grant terminations or the termination of federal workers. To the extent that the claim challenged other DOGE action over which the court has jurisdiction, the court determined that the claim must nevertheless be dismissed because it failed to adequately identify specific agency action.

Here, the court found that the problem with the plaintiffs’ complaint was that it lumped together an assortment of actions across 16 federal agencies into a single APA claim. “Such broad and unbounded pleading lacks the specificity required for identifying particular actions and can only be construed as a wholesale programmatic attack,” said the court, granting the motion to dismiss this claim.

Separation of powers. Turning to the plaintiffs’ allegation that the DOGE Defendants were acting in violation of the separation of powers by terminating grants, firing federal employees, and abolishing federal agencies funded by congressional appropriations, the court found that the plaintiffs lacked a cause of action to bring forth this freestanding constitutional claim. This is because the claim was premised on the defendants’ alleged violation of statutes appropriating funds and creating agencies, explained the court. As such, these claims must be brought under those statutes. Accordingly, this claim too was dismissed.

Appointments Clause. Next, the court considered the plaintiffs’ claim under the Constitution’s Appointments Clause. According to the plaintiffs, the head of DOGE is a principal officer who has not received Senate confirmation. In response, the defendants countered that the head of DOGE is not an officer of the United States. Here, the court sided with the plaintiffs, finding they had sufficiently alleged that the head of DOGE occupies a continuing position established by law and exercises significant authority pursuant to the laws of the United States.

As to the first point, the court noted that although the executive order establishing the DOGE Service Temporary Organization sets forth an expiration date of July 4, 2026, there existed no termination date for the overarching DOGE entity or its leader, suggesting permanence. With regard to the second point, the plaintiffs asserted that the head of DOGE is “in fact directing executive departments and agencies to cancel federal grants and loans, stop payments, terminate employees, reduce the workforce, and dismantle the department or agency itself.” Such significant authority over “core” governmental operations plainly renders the position more than incidental, said the court.

In response, the defendants argued that the plaintiffs had failed to state an Appointments Clause claim because the head of DOGE “does not occupy an office” formally established by law and allegedly lacks lawful authority for the powers he is exercising. “In other words, Defendants appear to make the extraordinary argument that an individual who holds an important office and wields immense power is not subject to the Appointments Clause so long as the office was unlawfully created, and the power was unlawfully seized,” observed the court.

Such constitutional safeguards are not so easily evaded, continued the court. Indeed, if the President unilaterally creates a principal office, endows it with unlawful powers, and fills it without Senate confirmation, that is more—not less—reason for Appointments Clause scrutiny. Accordingly, the court found the plaintiffs had asserted an Appointments Clause claim.

Ultra vires. Finally, the court addressed the plaintiffs’ ultra vires claim. Here, the court found that the plaintiffs plausibly alleged that DOGE Defendants are ordering agency officials to terminate grants and cut spending without any authority to do so.

Although the plaintiffs did not specify specific statutory limitations the defendants exceeded, the court noted that conduct in violation of specific statutory limitations is but one example of an ultra vires action. In this instance, the plaintiffs contended that the defendants are exercising immense power without any grant of statutory authority whatsoever. This, explained the court, is the sort of extreme legal error that can sustain a claim for ultra vires review.

The court was also satisfied at this stage that there was no other meaningful and adequate opportunity for judicial review and no clear and convincing evidence that Congress intended to preclude the plaintiffs’ ultra vires claim.

“Although review of past grant terminations may be available under the Tucker Act, and DOGE’s other past actions may be reviewable under the APA, those review schemes do not offer Plaintiffs a mechanism for seeking prospective injunctive relief,” concluded the court, finding the plaintiffs had stated an ultra vires claim.

The case is Nos. 25-cv-429 (TSC) and 25-cv-643 (TSC).

Judge: Chutkan, T.

Attorneys: Steven J. Perfrement, New Mexico Department of Justice, for State of New Mexico. Daniel Spector Lenz (Campaign Legal Center) for Japanese American Citizens League. Daniel Clayton Barr, Office of the Arizona Attorney General, for State of Arizona. Jason Evans, Michigan Department of Attorney General, for People of the State of Michigan. Carolyn Downs, California Department of Justice, for State of California. Christopher M. Lynch, U.S. Department of Justice, for Elon R. Musk, U.S. DOGE Service, U.S. DOGE Temporary Service Organization, and Donald J. Trump.

Companies: Japanese American Citizens League

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