Dear Colleagues, 

Please find a federal government update from our teams.

Update on NIH Supreme Court Ruling
Last week, the U.S. Supreme Court ruled that grant terminations cannot be challenged in federal district court under the Administrative Procedures Act. Instead, universities must sue for breach of contract in the Court of Federal Claims.  The logic behind the high court’s decision is that grant agreements are contracts, and under the Tucker Act, only the Court of Federal Claims has jurisdiction to hear breach of contract claims between the United States and its contracting parties.

The challenge with the Court of Federal Claims is that they can only award money damages; they cannot compel behavior, like ordering the government to reinstate grants that have been terminated. For this reason, CU can only recover costs that weren't reimbursed. We can no longer seek to have grants reinstated.

Our campus legal teams are working closely with their respective contracts and grants teams, who are all aware of this development. CU will continue to evaluate whether it makes sense to appeal terminations through the regular administrative processes. If there is ever a reason to pursue a breach of contract claim in the Court of Federal Claims, we remain prepared to do so.

DHS Releases Duration of Status Proposed Rule
The U.S. Department of Homeland Security (DHS) released a proposed rule for public comment in the Federal Register on Aug. 28, which changes how international student and exchange visitors are admitted into the U.S. Currently, nonimmigrants with F, J and I visas can stay in the U.S. until they complete their academic or exchange program. The proposed rule would replace current “duration of status” admissions, which have been in effect since the 1990s, with admissions limited to a fixed period of time, not to exceed four years, reports NAFSA, the Association of International Educators. CU Federal Relations is reviewing the proposed rule and coordinating with campus experts on potential comments. Comments are due Sept. 29.

White House Orders Investigation of Political Activity by Federal Grantees
The White House issued an executive order entitled Use of Appropriate Funds for Illegal Lobbying and Partisan Political Activity by Federal Grantees on Aug. 28, which directs the Attorney General (AG) to investigate whether federal grant funds are “being used to illegally support lobbying activities.” The AG is required to report on the progress of the investigation within 180 days. Federal law already places strict limitations on the use of federal funds for lobbying. For more information: Executive Order, Fact Sheet.

Federal Agencies Release “Safeguarding Academia” Bulletin
The National Counterintelligence and Security Center and a coalition of federal agencies, including the U.S. Department of Education and the National Science Foundation, released new research security guidance on Aug. 25 for U.S. colleges and universities. The 40-page Safeguarding Academia bulletin and accompanying quick reference guides for institutions and researchers highlight risks to technology, research and talent posed by foreign adversaries, and offer mitigation and reporting strategies for institutions and individuals. The bulletin includes “real-world case studies” of research exploitation as well as best practices. The guidance is intended to “promote a research ecosystem that balances openness, collaboration, integrity, fairness, responsibility, and security.”

White House, HHS Secretary Remove CDC Director
The White House and U.S. Department of Health and Human Services (HHS) jointly announced on Aug. 27 that Susan Monarez, director of the Centers for Disease Control and Prevention (CDC), has been relieved of her duties. White House Press Secretary Karoline Leavitt said Monarez “was not aligned with the president's mission to Make America Healthy Again, and the secretary asked her to resign.” A replacement will be named “soon.” Monarez was confirmed by a vote of 51-47 in the US Senate as CDC director on July 29. Jim O’Neill, Deputy Secretary at HHS, will serve as CDC’s Acting Director, reports The Washington Post.

HHS Eliminates Minority Biomedical Research Support Program
The U.S. Department of Health and Human Services (HHS), along with the National Institutes of Health (NIH), announced the elimination of the Minority Biomedical Research Support (MBRS) program on Aug. 26, due to the program’s failure to comply with the federal administration’s executive orders that prevent support for diversity, equity and inclusion-related activities. The MBRS provided colleges and universities with grants to increase the number of minority faculty, students and investigators conducting biomedical research. The termination of the MBRS program is effective as of Sept. 25.

Judge Blocks Funding Cuts to Sanctuary Jurisdictions
A U.S. District Court extended a preliminary injunction on Aug. 22, preventing the federal administration from cutting federal funding to over 30 cities and counties, including Denver, which have enacted policies to limit cooperation with immigration enforcement, reports The Colorado Sun. An earlier injunction issued in April, which the federal administration has appealed, provided similar protection to over a dozen other so-called sanctuary jurisdictions.

DOJ Will Not Defend Hispanic Serving Institutions in Lawsuit
The U.S. Department of Justice (DOJ) will not defend the U.S. Department of Education’s Hispanic Serving Institution (HSI) designation against a lawsuit before the U.S. Supreme Court challenging its constitutionality. There are roughly 600 HSIs nationwide, including CU Denver, reports Inside Higher Ed. At least 25 percent of full-time undergraduate students must be Hispanic or Latino for a university to qualify as an HSI. The designation allows universities to compete for additional federal resources. DOJ said the designation “violates the equal-protection component Fifth Amendment's Due Process Clause.”

The Federal Relations and General Counsel teams are actively monitoring developments. We are working closely with the President and Chancellors, as well as the Colorado congressional delegation, to champion CU priorities. We are committed to keeping you informed. Please visit the CU System Federal Updates and Actions page for up-to-date communications and federal memos.    

Danielle Radovich Piper, Sr. VP External Relations and Strategy
Kerry Tipper, Vice President, University Counsel