Higher Education Association Lawsuit Challenges NIH Action on F&A Reimbursement

Nationwide Preliminary Injunction Granted in NIH Lawsuit

March 5, 2025

Judge Angel Kelley of the United States District Court for the District of Massachusetts today issued a preliminary injunction halting the implementation, application, or enforcement of the National Institutes of Health’s Feb. 7 supplemental guidance imposing a cap of 15 percent on facilities and administration (F&A) costs reimbursement to universities who receive NIH research grants. The injunction applies to all institutions nationwide. This preliminary injunction replaces the temporary restraining order that had been in place since February 11, which also halted the implementation of the supplemental guidance.

While a temporary restraining order is put in place when a court determines that plaintiffs have provided enough evidence to show that irreparable harm is likely to result if an action is not halted temporarily, a preliminary injunction requires a higher standard of review. The ruling means that the judge has considered not only the harms that the enjoined action is likely to cause, but also the potential merits of the underlying case. The ruling means that the NIH’s action is halted until the judge renders a final decision in the case or the defendants successfully get a higher court to overturn the injunction, whichever comes first.

The injunction follows a hearing held on Feb. 21, 2025, during which both the representatives from separate lawsuits as well as the government presented arguments concerning the motion for preliminary injunction.  The three lawsuits were filed by AAU, APLU, ACE, 12 member universities, and one university system; the Association of American Medical Colleges; and 22 state attorneys general. The government is expected to appeal the decision.

Lawsuit Challenges NIH on F&A Reimbursement

ACE, the Association of American Universities (AAU), and the Association of Public and Land-grant Universities (APLU), along with several research universities, have filed a legal challenge against the administration’s decision to cap Facilities and Administrative (F&A) reimbursements at 15 percent for NIH research grants. The lawsuit, filed in the U.S. District Court for the District of Massachusetts, seeks to halt the proposed cuts, arguing they violate established federal grant regulations and administrative law.

February 12, 2025

On Feb. 11, Judge Angel Kelley confirmed that the motion by ACE-AAU-APLU for a temporary restraining order (TRO) need not be granted because her TRO granted earlier in the day in a similar Association of American Medical Colleges (AAMC) lawsuit covers all institutions in all states nationwide. The three associations are heartened that the NIH research F&A cut is fully blocked from implementation under that order. A hearing in the ACE-AAU-APLU case, the AAMC case, and the Attorneys’ General suit has been set for next Friday, February 21 regarding an extension of the emergency TRO and next steps for progressing to the injunction phase of litigation. The case will be represented by lead counsel Paul Clement from Clement & Murphy, along with Jenner & Block.