Labor & Employment Law Daily Wrap Up, PROCEDURE—D. Md.: Plaintiffs challenging DEI-related EOs denied Rule 59 motion to vacate injunction, amend complaint, (May 2, 2025)

By Kathleen Kapusta, J.D.

“Part of the explicit purpose and effect of the Challenged Provisions is to stifle debate—to silence selected viewpoints, selected discourse—on matters of public concern.”

Denying a motion filed by, among others, the National Association of Diversity Officers in Higher Education, to vacate the preliminary injunction it had previously entered enjoining enforcement of several provisions in Executive Orders issued by President Trump instructing executive agencies to end DEI programs within federal grant and contract processes—which had been stayed by the Fourth Circuit—the federal court in Maryland found the plaintiffs failed to satisfy FRAP 4’s “new evidence standard.” Though they pointed to new evidence and claims they wanted to present in an amended complaint and renewed motion for a preliminary injunction, they failed to show that any of it would materially alter the analysis of whether they are entitled to a preliminary injunction (National Association of Diversity Officers in Higher Education v. Trump, No. 25-cv-0333-ABA (D. Md. May 1, 2025)).

Injunction entered, stayed. On February 21, the court issued a preliminary injunction enjoining aspects of two Executive Orders—Ending Radical and Wasteful Government DEI Programs and Preferencing and Ending Illegal Discrimination and Restoring Merit-Based Opportunity—that seek to discourage and eliminate Diversity, Equity, and Inclusion policies and practices in the federal government and direct the Attorney General to take “appropriate measures” to encourage the private sector to end DEI programs. On March 14, the Fourth Circuit, in a short unpublished order, stayed the injunction.

Motion to vacate. On March 21, the plaintiffs, three organizations including NADOHE, along with the Mayor and City Council of Baltimore, Maryland, filed a motion pursuant to Federal Rule of Civil Procedure 59(e) to vacate the preliminary injunction based on new factual developments, which, they argued merited allowing them to file an amended complaint and a renewed motion for a preliminary injunction.

Jurisdiction. The government, in response, first argued that the court lacked jurisdiction to rule on the plaintiffs’ Rule 59 motion. Though the court, citing the Supreme Court’s 1982 Griggs v. Provident Consumer Discount Co. decision, acknowledged that the timely filing of a notice of appeal generally “divests the district court of its control over those aspects of the case involved in the appeal” it noted that under the 1993 revised Federal Rules of Appellate Procedure (FRAP) 4, the filing of a Rule 59 motion has the effect of suspending the notice of appeal until the motion is disposed of.

Rejecting the government’s argument that district courts do not have jurisdiction to adjudicate Rule 59 motions filed after a notice of appeal has been filed, the court pointed out that “the Supreme Court has expressly held—following Griggs and following the 1993 FRAP amendments—that FRAP 4, as ‘interpreted in Griggs... provides in express terms that [Rule 59] motions also serve to divest the appellate court of jurisdiction where the motions are filed after appeal is taken’ and that ‘[t]he majority of post-trial motions, such as Rule 59 [motions], render the underlying judgment nonfinal both when filed before an appeal is taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus divesting the appellate court of jurisdiction).’” Accordingly, the court found it had jurisdiction to rule on the plaintiffs’ motion.

Rule 59 motion. Turning to that motion, in which the plaintiffs argued that the court should vacate its preliminary injunction because of “multiple factual developments that have taken place since it issued its Preliminary Injunction,” the court noted that they pointed to “factual evidence of the Government’s own interpretation and implementation of the Executive Orders.” Based on those developments, they sought “to amend their complaint and pursue additional preliminary relief to prevent ongoing irreparable harm against a more developed factual backdrop.” They argued that “evidence related to agencies’ interpretation and implementation of the Executive Orders” would further support the likelihood of success on the merits of their already-asserted claims, and further that they “could amend their complaint to add new facial claims” challenging the executive order provisions at issue.

Not only did the court still believe that the plaintiffs established a strong likelihood of success on the merits of their facial free speech and vagueness claims, it noted that it remained “deeply troubled that the Challenged Provisions, which constitute content-based, viewpoint-discriminatory restrictions on speech (in addition to conduct), have the inherent and ineluctable effect of silencing speech that has long been, and remains, protected by the First Amendment.” Further, said the court, those provisions “do so through impermissibly vague directives that exacerbate the speech-chilling aspects of the Challenged Provisions.”

Stifle debate. In addition, the court stated, the provisions were intended in part to stifle debate, “to silence selected viewpoints, selected discourse—on matters of public concern.” Here, the court pointed out that the provisions forbid government contractors and grantees from engaging in discourses “related” to “equity” and direct the private sector to “end” diversity, equity, and inclusion.

The provisions at issue, the court declared, “do far, far more than announce a change in enforcement priorities within the bounds of existing law.” The impact of the provisions, it explained, “is to extinguish discourse throughout civil society on what makes our society diverse, the different perspectives we each bring to bear based our respective upbringing, family history, community, economic circumstances, race, national origin, gender, ability, sexual orientation, or the like.”

While the court here noted that other courts have agreed that government officials cannot “use the power of the State to punish or suppress disfavored expression,” it pointed out that whether the plaintiffs were likely to prevail on appeal was not the question presented by their motion to vacate. Rather, the question was whether they satisfied the Rule 59 “new evidence” standard. And here, the court found that they failed to show their new evidence, including how various agencies have interpreted and implemented the executive orders since the preliminary injunction was entered, would materially alter the analysis of whether they are entitled to a preliminary injunction. Indeed, said the court, it had ample evidence before it when it issued the preliminary injunction showing the ways the government was implementing each of the challenged provisions.

Small changes. While the plaintiffs also wanted to add one or more additional causes of action under the Administrative Procedures Act, the court found those new causes of action would be largely the same as those currently asserted. Further, with respect to relief, they argued that they would continue to seek the “broadest relief possible,” and the preliminary injunction they envision seeking would be subject to only “small changes” as compared to the current preliminary injunction.

Noting that the Fourth Circuit would soon be deciding whether the plaintiffs are entitled to a preliminary injunction based on their facial claims challenging the executive orders at issue, the court found they failed to present the type of new evidence or claims that would justify vacatur of the preliminary injunction under Rule 59(e) or show that a new injunction would place the courts and parties in a significantly different posture than the present one. The appropriate course, said the court, “is to deny the Rule 59(e) motion and allow the parties to brief the issues before the Fourth Circuit.”

The case is No. 25-cv-0333-ABA.

Judge: Abelson, A.

Attorneys: Aleshadye Getachew (Democracy Forward Foundation) for National Association of Diversity Officers in Higher Education. Pardis Gheibi, U.S. Department of Justice, for Donald J. Trump.

Companies: National Association of Diversity Officers in Higher Education

Cases: Procedure Discrimination GovernmentContracts MarylandNews GCNNews