Labor & Employment Law Daily Wrap Up, REMEDIES, DAMAGES—State AGs sent back to drawing board on motion for temporary restraining order against Musk and DOGE, (Feb 19, 2025)

By Brandi O. Brown, J.D.

“That said, Plaintiffs raise a colorable Appointments Clause claim with serious implications. Musk has not been nominated by the President nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise ‘significant authority pursuant to the laws of the United States.’”

In a lawsuit brought by 14 state attorneys general against Elon Musk, the U.S. Department of Government Efficiency (DOGE), and others, a D.C. federal district court has denied the AGs’ emergency motion for a temporary restraining order (TRO), determining that the AGs have not carried their burden of showing they will suffer imminent, irreparable harm absent a TRO (State of New Mexico v. Musk, No. 25-cv-429 (TSC) (D.D.C. Feb. 18, 2025)).

By Executive Order issued on January 20, 2025, President Trump established a “Department of Government Efficiency” and a subsidiary organization, U.S. DOGE Service Temporary Organization (DOGE). Elon Musk, directs the work of DOGE personnel, the court notes, but is classified, according to the declaration of the Director of the Office of Administration, as a “non-career Special Government Employee” and “Senior Advisor to the President.”

State AGs seek relief. The AGs brought an action for declaratory and injunctive relief, alleging that Musk’s actions violate the Appointments Clause of the U.S. Constitution because he has not been nominated by the President and confirmed by the Senate. They also allege that Musk and DOGE lack statutory authority for their actions and that Musk “exercises virtually unchecked power across the Executive Branch, making decisions about expenditures, contracts, government property, regulations, and the very existence of federal agencies.”

The AGs also claimed that in the past few weeks, Musk and DOGE had gained access to “sensitive data, information, systems, and technological and financial infrastructure across the federal government” and that they had used this unfettered access and authority to terminate personnel, place entire agencies on temporary leave, transfer data to outside servers, take over physical office spaces, and terminate contracts valued in the hundreds of millions of dollars.

No source of legal authority. Indeed, the court noted, the defendants “concede that there is no apparent ‘source of legal authority granting’ Musk or DOGE ‘the power to order personnel actions’ at federal agencies but do not deny that Defendants are taking such actions.”

Restraint sought on data and termination/leave. Thus, the AGs moved for a TRO to enjoin multiple categories of conduct by the defendants, which was ultimately narrowed, during a hearing, to the following: “(1) accessing, copying, or transferring any data systems in the Office of Personnel Management, and the Departments of Education, Labor, Health and Human Services, Energy, Transportation, and Commerce; and (2) terminating or otherwise placing on leave any officers or employees within those same agencies.”

Irreparable harm? Explaining that a TRO is “an extraordinary remedy that should be granted only when the party seeking relief, by a clear showing, carries the burden of persuasion,” the court explained that its analysis of the motion in this case “begins and ends with irreparable harm.” On the record before it, the court explained that it could not conclude that the AGs had satisfied the “high standard for irreparable injury.”

Possibility not enough. While the AGs’ “declarations are replete with attestations that if Musk and DOGE Defendants cancel, pause, or significantly reduce federal funding or eliminate federal-state contracts,” their states will suffer extreme harm and the court was “aware that DOGE’s unpredictable actions have resulted in considerable uncertainty and confusion” for the AGs, their states, and their constituents, the court explained that the “possibility” that Musk and DOGE may take actions that irreparably harm them “is not enough.” It is still “uncertain” when and how the state programs the AGs identify will suffer. The court noted that, in other cases against these defendants, where the litigants had “identified specific individuals or programs imminently targeted by” the defendants, the courts have been able to issue “appropriately tailored TROs.”

As for the request by the AGs that the court take judicial notice of widespread media reports that DOGE has taken or will soon take certain actions, such as mass terminations, the court explained that those “reports cannot substitute for ‘specific facts in an affidavit or a verified complaint’ that ‘clearly show that immediate and irreparable injury, loss, or damage will result.’” And while the court could take judicial notice of news articles for their existence, it could not take notice of them for the truth of the statements they assert.

Failed to connect the harm. Even if it could consider the news reports in conjunction with the defendants’ “vague representation that ‘a select set of agencies in fact terminated a number of employees at the end of last week,’” that would not remedy this motion’s deficiencies. The termination of federal employees may cause extreme harm to the individual employees, and potentially the institution, but “harm that might befall unnamed third parties does not satisfy the irreparable harm requirement in the context of emergency injunctive relief, which must instead be connected specifically to the parties before the Court.” Here, the AGs did not adequately link the defendants’ acts to imminent harm to their particular states.

Colorable claim. The court, however, also stated the following: “That said, Plaintiffs raise a colorable Appointments Clause claim with serious implications. Musk has not been nominated by the President nor confirmed by the U.S. Senate, as constitutionally required for officers who exercise ‘significant authority pursuant to the laws of the United States.’”

No source of authority. The court continued to voice concerns: “Bypassing this ‘significant structural safeguard[] of the constitutional scheme,’... Musk has rapidly taken steps to fundamentally reshape the Executive Branch” and “[e]ven Defendants concede there is no apparent ‘source of legal authority granting [DOGE] the power’ to take some of the actions challenged here.”

“Accepting Plaintiffs’ allegations as true,” the court stated, “Defendants’ actions are thus precisely the ‘Executive abuses’ that the Appointments Clause seeks to prevent.” However, even with this “strong merits argument” the AGs could not secure a TRO at this juncture. “In these circumstances,” the court added, “it must be indisputable that this court acts within the bounds of its authority. Accordingly, it cannot issue a TRO, especially one as wide-ranging as Plaintiffs request, without clear evidence of imminent, irreparable harm to these Plaintiffs. The current record does not meet that standard.”

The case is No. 25-cv-429 (TSC).

Judge: Chutkan, T.

Attorneys: James Grayson, Office of the Attorney General, for State of New Mexico. Brian Simmonds Marshall, Oregon Department of Justice, for State of Oregon. Ryan Kane, Attorney General's Office, for State of Vermont. Joshua Edward Gardner, U.S. Department of Justice, for Elon Musk.

Cases: RemediesDamages IndividualRights PublicEmployees Layoffs DistrictofColumbiaNews