[UPDATE 3/28/25 10:17 pm: See also a similar result, but with less explanation, from Judge John Bates (D.D.C.) in Jenner & Block LLP v. U.S. Dep’t of Justice.]
From as we speak’s determination partly granting a short lived restraining order in Wilmer Cutler Pickering Hale & Dorr LLP v. Govt Workplace of the President by Choose Richard Leon (D.D.C.) (see right here for extra particulars on plaintiff’s arguments):
[P]laintiff has proven a probability of success on the deserves of its First Modification claims as to Sections 3 and 5 of the Govt Order. Undisputably, “the First Modification prohibits authorities officers from subjecting people to ‘retaliatory actions’ after the actual fact for having engaged in protected speech.” Houston Cmty. Coll. Sys. v. Wilson (2022).
This prohibition contains retaliatory actions primarily based on perceived viewpoint. The retaliatory nature of the Govt Order at situation right here is evident from its face-not solely from Part 1, but additionally from the Truth Sheet printed the identical day. Certainly, the Govt Order requires authorities contracting businesses to reveal, evaluate, and terminate all contracts with plaintiff—that’s Part 3—and restricts WilmerHale workers from entry to federal officers, buildings, and employment—that’s Part 5. There isn’t a doubt this retaliatory motion chills speech and authorized advocacy, or that it qualifies as a constitutional hurt.
Relating to Part 2, nonetheless, plaintiff has not met its burden in exhibiting a probability of success on the deserves. Our Circuit has held that safety clearance choices are throughout the purview of the Govt Department, see Lee v. Garland (D.C. Cir. 2024), and plaintiff has not pointed to persuasive authority that will assist extraordinary injunctive aid at this early stage….
[T]he Courtroom [also] finds that plaintiff would undergo irreparable damage ought to the Courtroom deny a TRO as to Sections 3 and 5 of the Govt Order. As an preliminary matter, violations of plaintiffs constitutional rights represent irreparable hurt, even when the violations happen just for brief intervals of time. Furthermore, implementation of Sections 3 and 5 would trigger particular, irreparable, and non-remediable financial and reputational hurt to plaintiff. Whereas financial loss doesn’t all the time warrant a TRO, this isn’t a typical state of affairs as a result of plaintiff faces greater than financial hurt—it faces crippling losses and its very survival is at stake.
Certainly, implementing Part 3—the federal government contracts provision—would threaten nearly one-third of plaintiff’s revenues. The declaration of Bruce Berman states that “[a]t least 21 of the agency’s 25 largest shoppers in 2024 have contracts with federal businesses. These 21 shoppers accounted for greater than 30% of the Agency’s income in 2024—almost $500 million.” Plaintiff can also be “presently dealing with over 100 open authorities contracting issues involving numerous federal businesses.” Dropping these shoppers on account of Part 3 could be a devastating blow to plaintiff—threatening plaintiff’s very existence. This says nothing of the potential shoppers who might not even think about hiring plaintiff due to their issues about dropping authorities contracts.
Relating to Part 5—the personnel provision—it’s clear that plaintiff’s enterprise is inextricably intertwined with interactions with the federal authorities. The Berman Declaration states that WilmerHale attorneys are engaged on roughly 1,110 issues earlier than or involving federal businesses. WilmerHale attorneys are scheduled to attend conferences on behalf of shoppers on the Division of Justice (“DOJ”) on March 31, 2025 and the Securities and Change Fee (“SEC”) on April 1, 2025.
Based on the Berman Declaration, plaintiff doesn’t know both if its attorneys shall be denied entry to DOJ or the SEC, or if the federal workers will refuse to satisfy with them. Plaintiff’s counsel acknowledged in the course of the TRO listening to that for the reason that Govt Order issued, the federal authorities has already cancelled two conferences with plaintiff’s attorneys, on the final minute and with out rationalization. Ought to Part 5 be enforced, plaintiff could be completely hamstrung from representing shoppers as a result of its attorneys couldn’t enter federal courthouses or different buildings, or meet with federal workers concerning circumstances. The affect on plaintiffs enterprise and repute can’t be overstated. Thus, I discover that the second issue, irreparable damage, favors granting a TRO concerning Sections 3 and 5….
[T]he steadiness of the equities and public curiosity[] additionally favor issuing a TRO stopping enforcement of Sections 3 and 5. The accidents to plaintiff right here could be extreme and would spill over to its shoppers and the justice system at massive. The general public curiosity calls for defending towards harms of this magnitude….
Paul Clement, Erin Murphy and Joseph J. Demott (Clement & Murphy, PLLC) symbolize WilmerHale.
