Team DOGE / Musk / Tangerine 2.0 Tried (And Failed) To Offer An Inapplicable Case, In The New Mexico, Et Al., v. Musk Case In DC This Past Week...

It has been a minute since we caught the readership up on the federal suit by state governments, against the privatized DOGE army that attacked already awarded fundings, to state level agencies. [It was a busy week, in the federal trial courts, whilst I was largely off-grid, down in Music City -- on my pro bono field trip.]

Here's the latest: Team Musk moved to dismiss. That will shortly be denied, much along the lines set forth below, in the able USDC Judge Cutkan's USDC courtroom, down in DC:

. . .Nuclear Regulatory Commission and “the Court’s leading case on post-APA ultra vires review,” Leedom v. Kyne, 358 U.S. 184 (1958), only address review of “ultra vires agency action” and have no bearing on ultra vires claims against governmental action by non-agency actors, including JACL Plaintiffs’ ultra vires claim in this case. 2025 WL 1698781 at *8; see also Boire v. Greyhound Corp., 376 U.S. 473, 481 (1964) (Kyne’s exception applies to agency action); Bhd. of Ry. & S.S. Clerks, Freight Handlers, Express & Station Emp. v. Ass’n for Benefit of Non-Cont. Emp., 380 U.S. 650, 660 (1965) (same); Bd. of Governors of Fed. Rsrv. Sys. v. MCorp Fin., Inc., 502 U.S. 32, 43 (1991) (same).

Kyne’s exception, which allows ultra vires review of agency action when an agency acts “in excess of its delegated powers and contrary to a specific prohibition in a statute[,]” makes sense because agencies are creatures of statute and Congress has delineated judicial review procedures for agency action. Nuclear Regul. Comm’n, 2025 WL 1698781, at *9 (citation modified). But different considerations govern where there is no relevant statutory authority. See, e.g., Marin Audubon Soc’y v. Fed. Aviation Admin., 121 F.4th 902 (D.C. Cir. 2024). Here, Mr. Musk, Ms. Gleason, and DOGE are government actors neither created by nor acting in accordance with any authority granted by statute or the U.S. Constitution. Plaintiffs’ claim these Defendants are acting without any basis in law, and as such, are acting ultra vires.

Therefore, Defendants’reliance on cases regarding agency action, including Nuclear Regulatory Commission, is misplaced and their motion to dismiss should be denied. . . .

What a pack of dunces these DOGE boys are. . . onward.

नमस्ते