Good morning and hello from 30,000 feet above Idaho somewhere. I am attaching the court's preliminary injunction order in King County v. Turner, which you will recall is a lawsuit brought by over 2 dozen local governments against the federal government to enjoin the enforcement of the new conditions in HUD Continuum of Care grants and certain DOT grants (including those administered by the FTA, FHWA, FAA, and FRA). The conditions in the grants are outlined in the order, but include those related to DEI and immigration as well as several others. The court thoroughly addressed the jurisdictional issue we've seen in many of these suits and rejected the federal government's Tucker Act arguments that the plaintiff's claims are merely federal contract claims. The court found that "the source of Plaintiffs' rights resides in statutes and the Constitution, not in any contractual provisions in the Grant Agreements." The court similarly rejected the federal government's arguments that the imposition of the funding conditions on the grants were committed to agency discretion by law and therefore not reviewable under the APA. Turning to the preliminary injunction factors, the court found that the plaintiffs were likely to succeed on the merits on their claims that the defendants' actions violated the APA as contrary to statutory authority and therefore a violation of the separation of powers doctrine. The court agreed with the plaintiffs that "in attempting to condition disbursement of funds in part on grounds not authorized by Congress, but rather on Executive Branch policy, Defendants are acting in violation of the Separation of Powers principle and 'in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.'" As to the defendants' arguments that the agency is able to add the conditions based on changes in policy priorities, the court explained: In response, Defendants do not dispute that such [statutory] authorization is required, but fail to identify a statutory source conferring it. Instead, they refer to several agency regulations for the proposition that Defendants "may terminate their grants merely based on a change in policy priorities." Defs.' Opp. at 27 (citing 2 C.F.R. § 200.340(a)(4)). As Plaintiffs point out, however, an agency regulation cannot create statutory authority; only Congress can do that. Whatever actions HUD chooses to take based on a change in its policy priorities must still be rooted in a congressional delegation of authority, a limitation that the cited regulation itself makes clear. See 2 C.F.R. § 200.340(a)(4) (award may be terminated if it "no longer effectuates the program goals or agency priorities," but only "to the extent authorized by law."). The court also concluded that a catchall provision in the statute could authorize the agency's actions: Substantive conditions implicating controversial policy matters that are unrelated to the authorizing statute, such as prohibitions on DEI initiatives and "promot[ing] elective abortion," are simply not "of the same kind" as conditions that require recipients to monitor and report the progress of their program. Moreover, Defendants have not even attempted to explain to this Court how the proposed funding conditions might actually fall within this catchall provision-how they would, in other words, support the Secretary in carrying out the CoC program "in an effective and efficient manner." While the above analysis relates to the CoC grant, the Court found the conditions on the DOT grants to similarly likely violate the separation of powers and therefore the APA. The court rejected the federal government's request for bond and a stay. The relief is limited to the plaintiffs. The court provides the following in its order: HUD and its officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them (collectively "Enjoined HUD Parties"), are enjoined from (1) imposing or enforcing the CoC Grant Conditions, as defined in the Motions, or any materially similar terms or conditions with respect to any CoC funds awarded to the HUD Plaintiffs or members of their Continuums; (2) as to the HUD Plaintiffs, rescinding, withholding, cancelling, or otherwise not processing any CoC Agreements, or pausing, freezing, impeding, blocking, cancelling, terminating, delaying, withholding, or conditioning CoC funds, based on such terms or conditions, including without limitation failing or refusing to process and otherwise implement grants signed with changes or other objection to conditions enjoined by this preliminary injunction; (3) requiring the HUD Plaintiffs to make any "certification" or other representation related to compliance with such terms or conditions; or (4) refusing to issue, process, or sign CoC Agreements based on HUD Plaintiffs' participation in this lawsuit; 4. The Enjoined HUD Parties shall immediately treat any actions taken to implement or enforce the CoC Grant Conditions or any materially similar terms or conditions as to the HUD Plaintiffs or their Continuums, including any delays or withholding of funds based on such conditions, as null, void, and rescinded; shall treat as null and void any such conditions included in any grant agreement executed by any Plaintiff or member of a Plaintiff Continuum while this PI or the previous TROs are in effect; and may not retroactively apply such conditions to grant agreements during the effective period of this PI or the previous TROs. The Enjoined HUD Parties shall immediately take every step necessary to effectuate this order, including clearing any administrative, operational, or technical hurdles to implementation; 5. DOT, the DOT OAs, and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them (collectively "Enjoined DOT Parties"), are enjoined from (1) imposing or enforcing the DOT Grant Conditions, as defined in the Motions, or any materially similar terms or conditions to any DOT funds awarded, directly or indirectly, to the DOT Plaintiffs or their subrecipients; (2) as to the DOT Plaintiffs or their subrecipients, rescinding, withholding, cancelling, or otherwise not processing the DOT grant awards, or pausing, freezing, impeding, blocking, canceling, terminating, delaying, withholding, or conditioning DOT funds, based on such terms or conditions, including without limitation failing or refusing to process and otherwise implement grants signed with changes or other objection to conditions enjoined by this preliminary injunction; (3) requiring the DOT Plaintiffs or their subrecipients to make any "certification" or other representation related to compliance with such terms or conditions; or (4) refusing to issue, process, or sign grant agreements based on DOT Plaintiffs' participation in this lawsuit; 6. The Enjoined DOT Parties shall immediately treat any actions taken to implement or enforce the DOT Grant Conditions or any materially similar terms or conditions as to DOT funds awarded, directly or indirectly, to the DOT Plaintiffs or their subrecipients, including any delays or withholding of funds based on such conditions, as null, void, and rescinded; shall treat as null and void any such conditions included in any grant agreement executed by any DOT Plaintiff or subrecipient while this PI or the previous TROs are in effect; and may not retroactively apply such conditions to grant agreements during the effective period of this PI or the previous TROs. The Enjoined DOT Parties shall immediately take every step necessary to effectuate this order, including clearing any administrative, operational, or technical hurdles to implementation; [logo]<https://imla.org/> [facebook icon]<https://www.facebook.com/InternationalMunicipalLawyersAssociation/>[twitter icon]<https://twitter.com/imlalegal>[linkedin icon]<https://www.linkedin.com/company/international-municipal-lawyers-association-inc./> Amanda Karras (she/her) Executive Director / General Counsel International Municipal Lawyers Association P: (202) 466-5424 x7116 D: (202) 742-1018 51 Monroe St. Suite 404 Rockville, MD, 20850 Plan Ahead! See IMLA's upcoming events<https://imla.org/events/>, calls and programming.