Temporary Restraining Order – AAU v. DOE
Apr-16
A U.S. district judge has issued a Temporary Restraining Order (TRO) regarding the DOE Policy Flash: Adjusting Department of Energy Grant Policy for Institutions of Higher Education (IHE) (the “Rate Cap Policy”).
“For purposes of Federal Rule of Civil Procedure 65(b), the Plaintiffs have made a sufficient showing that they have provided notice to Defendants and that, unless their Motion for a Temporary Restraining Order (“TRO”), [ECF No. 3 (the “Motion”)], is granted, they will sustain immediate and irreparable injury before there is an opportunity to hear from all parties.
Thus, a TRO is justified to preserve the status quo pending a hearing and the Plaintiffs’ Motion is GRANTED.”
Please review the full order granting the TRO (PDF).
Indirect Costs Policy Memorandum (last updated 4/13)
Apr-11
In a new policy memorandum shared with grant recipients at colleges and universities, the Department of Energy (DOE) announced that it will limit financial support of indirect costs of DOE research funding to 15%.
“…Hereinafter, the Department will no longer use the negotiated indirect cost rate for grants awarded to IHEs. Instead, it is setting a standardized 15 percent indirect cost rate for all grant awards to IHEs.”
Resources:
Communication received by the Office of Sponsored Programs
11-Mar – Recession Letter
SUBJECT: RESCISSION OF NOTICE OF SUSPENSION OF DEI, CBP/PIER PLANS AND JUSTICE 40 RELATED ACTIVITIES UNDER FINANCIAL ASSISTANCE AWARDS
Dear Recipient,
DOE believes that few, if any, funding agreements issued by the Office of Science are “equity-related” under section 2(b)(i) of Executive Order 14151, 90 FR 8339, entitled Ending Radical and Wasteful Government DEI Program and Preferencing. Nonetheless, out of an abundance of caution, it is rescinding the following communication effective immediately:
- Rescinded: DEI, CBP/PIER Plans, and Justice40-related activities suspension letter dated January 31, 2025.
However, pursuant to DOE’s enforcement authority and in accordance with current administrative priorities, any Diversity, Equity, and Inclusion (DEI), Community Benefit Plan (CBP), Promoting Inclusive and Equitable Research (PIER) Plan, or Justice40 activities provided for in your funding agreement(s) are, for the time being, voluntary. DOE will compensate you for all activities undertaken pursuant to the terms of your funding agreement(s).
If you have any questions, please contact the undersigned Contracting Officer by e-mail at warren.riley@science.doe.gov.
Warren Riley
Office of Grants and Cooperative Agreements
DOE Contracting Officer
Document posted to Department of Energy Website
Here is the direct link.
NOTICE OF COURT ORDER
You are hereby advised that a temporary restraining order has been entered in the case of New
York et al. v. Trump, No. 25-cv-39-JJM-PAS (D.R.I.), ECF No. 50 (Jan. 31, 2025). You are
receiving this Notice pursuant to the Court’s directive that notice of the order be provided “to all
Defendants and agencies and their employees, contractors, and grantees by Monday, February 3,
2025, at 9 a.m.” A copy of the Court’s Order is attached for reference.
This case challenges an alleged “pause” of certain Federal financial assistance, related to OMB
Memorandum M-25-13, Temporary Pause of Agency Grant, Loan, and Other Financial
Assistance Programs (Jan. 27, 2025) (“OMB Memo”). Although that OMB Memo was
rescinded on January 29, 2025, the plaintiffs in the above-referenced case allege that the funding
pause directed by the OMB Memo is still in effect, including because of recently issued
Executive Orders by the President.
In response, the Court has entered a temporary restraining order prohibiting certain actions by
the Defendants in the case, which is effective immediately. All Defendants—including their
employees, contractors, and grantees—must immediately comply with the Court’s Order. For
complete details and terms of the Court’s Order, please refer to pages 11 and 12 of the enclosed
Order.
To assist in your compliance, here is a summary of the key terms:
- Federal agencies cannot pause, freeze, impede, block, cancel, or terminate any
awards or obligations on the basis of the OMB Memo, or on the basis of the
President’s recently issued Executive Orders.
- This prohibition applies to all awards or obligations—not just those involving the
Plaintiff States in the above-referenced case—and also applies to future assistance
(not just current or existing awards or obligations).
- Agencies may exercise their own authority to pause awards or obligations, provided
agencies do so purely based on their own discretion—not as a result of the OMB
Memo or the President’s Executive Orders—and provided the pause complies with
all notice and procedural requirements in the award, agreement, or other
instrument relating to such a pause.
- On pages 11 and 12 of the Order, the Court prohibits agencies from pausing
funding “except on the basis of the applicable authorizing statutes, regulations,
and terms.” Thus, agencies remain free to exercise their own discretion under
their “authorizing statutes, regulations, and terms,” including any exercise of
discretion to pause certain funding. Additionally, agencies remain free to take
action pursuant to the terms of the relevant award or obligation, such as in cases
of grantee noncompliance.
- Any exercise of agency discretion, however, cannot be based on the OMB Memo
or the President’s Executive Orders, given that the Court has prohibited agencies
from “implementing or giving effect to the OMB [Memo] under any other name
or title[.]” (Order, pg.12). Additionally, any decision to pause, stop, delay, or
otherwise withhold federal financial assistance programs must comply with all
notice and procedural requirements in the award, agreement, or other instrument
setting forth the terms of the award or obligation.
- Out of an abundance of caution, all federal agencies (even those not named as
defendants in the case) should comply with the above-referenced terms.
As the Court’s Order reflects, the above terms are temporary as litigation in the case is ongoing.
At present, however, the Court’s Order is in effect and must be complied with.
If you have any questions about the scope or effect of the Court’s Order, please contact your
agency’s Office of General Counsel or your grant officer, as appropriate. Thank you for your
attention to this matter.
DOE Contracting Officer Notification of DOE’s Suspension of DEI, CBP or PIER Plan, and Justice 40 Requirements in Financial Assistance Agreements
31-Jan Communication received by the Office of Sponsored Programs.
“On January 20, 2025, the President of the United States signed an Executive Order (E.O.) titled, Ending Radical and Wasteful Government DEI Programs and Preferencing. The order includes, in part, a requirement to terminate all Diversity, Equity, and Inclusion (DEI) performance requirements for employees, contractors, or grantees.
To implement the E.O., the Department of Energy (DOE) directs the immediate suspension of the following activities in your financial assistance awards:
- Diversity, equity, and inclusion (DEI) programs and activities involving or relating to DEI objectives and principles;
- Community Benefits Plans (CBP)*; or
- Justice40 requirements, conditions, or principles.
In lieu of the CBP, the Department of Energy’s Office of Science required financial assistance applicants to include a Promoting Inclusive and Equitable Research (PIER) Plan in their applications for financial assistance in response to funding opportunity announcements beginning in fiscal year (FY) 2023. These PIER Plans were subsequently incorporated into resultant financial assistance awards by reference.
Therefore, effective immediately, you shall suspend all DEI, CBP/PIER Plans, and Justice40 activities associated with all financial assistance awards issued by the U.S. Department of Energy’s Office of Science (SC), Consolidated Service Center – Office of Grants and Cooperative Agreements. DOE will not enforce any award requirements related to the above activities during this suspension pending the outcome of a review of the Department’s ongoing activities.
If you believe any activity listed above is required by law, or if you have any questions, please contact the undersigned Contracting Officer by e-mail at christine.nault@science.doe.gov.”
Office of Science Guidance on PIER Plans
27-Jan Communication sent to the Office of Sponsored Programs.
“The President has issued 43 Executive Orders, Presidential Memoranda, and Proclamations, including an Executive Order entitled Ending Radical and Wasteful Government DEI Programs and Preferencing. DOE is moving aggressively to implement this Executive Order by directing the suspension of the following:
- Diversity, equity, and inclusion (DEI) policies, procedures, programs, activities, and reviews involving or relating to DEI objectives and principles until further notice;
- Requiring, using, or enforcing Community Benefits Plans (CBP); and
- Requiring, using, or enforcing Justice40 requirements, conditions, or principles in any loans, loan guarantees, grants, cost sharing agreements, funding opportunity announcements, contracts, contract awards, or any other source of financial assistance.
The Office of Science is immediately ending the requirement for Promoting Inclusive and Equitable Research (PIER) Plans in any proposal submitted to the Office of Science. All open solicitations have been or will be amended to remove the PIER Plan requirement and associated review criterion. For proposals that have already been submitted to the Office of Science, no action on the part of the applicant is required, but applicants will have the option to resubmit a new application with the removal of the PIER plan. Reviewers will not be asked to read or comment on PIER Plans. Selection decisions will not take into consideration the content of PIER Plans or any reviewer comments on PIER Plans.
If you have questions, please email questions@science.doe.gov. Thank you for your attention to this important matter.”
Memorandum for All DOE Funding Agreements or Awards
27-Jan Communication sent to the Office of Sponsored Programs.
“SUBJECT: Cease all activities associated with DEI and CBP The President has issued 43 Executive Orders, Presidential Memoranda, and Proclamations, including an Executive Order entitled Ending Radical and Wasteful Government DEI Programs and Preferencing. DOE is moving aggressively to implement this Executive Order by directing the suspension of the following activities in any loans, loan guarantees, grants, cost sharing agreements, contracts, contract awards, or any other source of DOE funding:
- Diversity, equity, and inclusion (DEI) programs and activities involving or relating to DEI objectives and principles;
- Community Benefits Plans (CBP); and
- Justice40 requirements, conditions, or principles.
Recipients and subrecipients must cease any activities, including contracted activities, and stop incurring costs associated with DEI and CBP activities effective as of the date of this letter for all DOE grants, cooperative agreements, loans, loan guarantees, cost sharing agreements, or other DOE funding of any kind. Recipients are responsible for communicating and enforcing this direction with all subrecipients and contractors. Costs incurred after the date of this letter will not be reimbursed. This letter will be incorporated into your award with the next modification.
Additional guidance will be forthcoming. Recipients who have DEI and CBP activities in their awards will be contacted by their Grants Officer to initiate award modifications consistent with this Order.”
