(CN) — A federal appeals court on Tuesday prodded the Trump administration on its justification to broadly cut public health research funding related to gender identity, Covid-19 and diversity, equity and inclusion objectives.
The National Institutes of Health is challenging a lower court’s ruling ordering it to reverse the termination of grants that do not advance agency goals or priorities, as well as to vacate agency guidance on grant priorities, after the Trump administration slashed hundreds of millions of dollars in research funding for what it calls “DEI”-related subjects.
Arguing to a panel of First Circuit judges, government lawyer Benjamin Wei claimed the issue is now a moot one since the NIH has since updated and elaborated on the fund-cutting guidance that was scrutinized by the lower court.
“For example, the court criticized NIH for not adequately supporting its conclusions on ‘gender identity’ research,” the government argued in a brief. “In response, NIH has now cited a recent literature review as evidentiary support for its position.”
Wei argued these updates should be enough to vacate the lower court’s ruling since he claimed it only applied to the old guidance and is now inapplicable following the changes. U.S. Circuit Judge William Kayatta, a Barack Obama appointee, wasn’t so sure.
“Suppose you issued new guidance that was exactly like the first guidance, except it added one sentence?” Kayatta asked, seemingly skeptical that the circumstances have materially changed enough to render the lower court’s ruling moot.
That hypothetical “would be a very different case,” Wei replied.
The exchange spoke to the central issue disconnecting the government from the educational institutions and Democratic states suing it over the research funding cuts: to what extent the lower court’s ruling, penned by U.S. District Judge William Young out of Massachusetts, can block the NIH from pulling this funding on the basis of subject matter — in this case, research related to DEI, Covid-19 and other topics that run afoul of the Trump administration’s priorities.
Young, a Ronald Reagan appointee historically unkind to the agendas of Donald Trump’s second term, lambasted the administration in June for making the cuts based on loose, vague definitions of issues like DEI. Later that summer, the Supreme Court greenlit the cancellation of the research grants themselves but simultaneously ruled in a secondary split that the administration’s rationale for the terminations was indeed unlawful.
From the plaintiffs’ perspective, the government broadly slashed roughly $800 million of funding already approved by Congress that is hindering research into critical treatments for diseases like HIV, AIDS, Covid-19, Zika, Alzheimer’s and shingles. Restoring that money, according to the government, is actually the Court of Claims’ job, which the plaintiffs are contesting.
The education groups and Democratic states are seeking clarification on whether the government can and will continue targeting funding in this fashion.
Wei said the NIH “has moved on from the challenged directives and those will not be applied going forward.” But according to the plaintiffs, that isn’t in writing.
“We heard a disavowal from the podium of the intent to continue to apply the directives,” ACLU lawyer Rachel Meeropol argued. “But there’s been no disavowal in writing of the question of whether the directives would be used in the future if the court order below was vacated.”
Meeropol added that it’s the government’s own “formidable, heavy burden” to show that the guidance won’t be used in the future, thus proving mootness.
U.S. Circuit Judge Julie Rikelman, a Joe Biden appointee, floated merely dismissing the government’s appeal if the disputed ruling is actually moot, as it claims.
“If functionally what you’ve done, according to you, is comply with the federal court’s order, why would we then vacate that order?” Rikelman asked. “You’ve just done what we would expect.”
Wei replied that affirming that order could create confusion, “or perhaps the ability for misinterpretation.”
The three-judge panel, which also included U.S. Circuit Judge Lara Montecalvo — another Biden appointee — didn’t immediately rule.
But another First Circuit panel handed Trump’s cost-cutting NIH a loss late Monday, blocking the agency from slashing billions of dollars in support of research payments to universities and medical centers. In that case, a similar coalition of Democratic states and academic groups sought to challenge an NIH decision to impose a hard 15% cap on payments for indirect research costs.
In a 38-page ruling, U.S. Circuit Judge Kermit Lipez wrote that such a cap defies Congress.
“Congress went to great lengths to ensure that NIH could not displace negotiated indirect cost reimbursement rates with a uniform rate,” the Bill Clinton appointee wrote.
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