APPEALS CONTINUE IN EXECUTIVE ORDER CASES TARGETING LAW FIRMS

https://storage.courtlistener.com/recap/gov.uscourts.dcd.278932/gov.uscourts.dcd.278932.145.0.pdf

OVERVIEW

The administration is pressing ahead with its efforts to enforce Executive Orders targeting four major law firms, despite mounting legal setbacks. On July 21, 2025, the administration filed a Notice of Appeal in the D.C. Circuit challenging the district court’s permanent injunction blocking enforcement of its Executive Order against Jenner & Block. This move follows a similar Notice of Appeal filed on June 30, 2025, in the case involving Perkins Coie—a development we reported on in Issue 21.

Both actions are part of a broader campaign initiated by the Trump administration earlier this year, aiming to restrict federal contracting with law firms it claims are engaged in "partisan lawfare." Courts have thus far expressed deep skepticism toward the Executive Orders, citing constitutional and statutory concerns. The latest appeal signals that the administration is not backing down, setting the stage for a high-profile showdown in the appellate courts.

LEGAL INTERPRETATION

This marks the second appeal filed in the four related cases decided against the administration’s Executive Orders. To date, no appellate briefs have been filed, so the legal rationale the administration will offer for reversing the lower court rulings remains unknown.

But the trajectory is becoming clear. Having now appealed two of the four cases, it appears increasingly likely that the administration will pursue appeals in the remaining two. The deadline to file a Notice of Appeal is July 25, 2025, in the case against WilmerHale, and September 25, 2025, in the case against Susman Godfrey.

As previously reported, the Trump administration’s win rate in district court has been remarkably low—just 5 out of 87 cases (5.7%). But success rates climb significantly on appeal: 31.8% at the federal appellate level and a striking 93.7%(15 out of 16 cases) at the Supreme Court. This upward trend is almost certainly driving the administration’s strategy to keep pushing cases up the judicial ladder.

Still, in these four Executive Order cases, there’s limited room for divergence. All four were decided by the same court, the U.S. District Court for the District of Columbia, and will be reviewed by the same appellate court, the D.C. Circuit. Each district court decision rested on the same core legal conclusions about the unlawfulness of the Executive Orders. So whatever the outcome of the  appeal, it is likely to do so uniformly across all four cases.

BRIDGE POV

The administration’s decision to appeal the injunctions in the Jenner & Block and Perkins Coie cases reflects a clear litigation strategy: pursue reversals at the appellate level, where the administration has historically seen improved outcomes. But the underlying legal issues remain unchanged. Each of the four district court rulings struck down the Executive Orders on the same constitutional and statutory grounds—making it unlikely that different results will emerge in the D.C. Circuit.

For law firms and institutional clients, the core issue is not optics or politics—it is principle. The Executive Orders at issue attempt to penalize law firms based on the cases they take and the clients they represent. Allowing those penalties to stand would undermine core tenets of legal independence and the adversarial system. While the administration may view these appeals as a vehicle to advance its broader policy posture, the legal community must continue to affirm that zealous representation—especially in cases involving the government—is not just permitted, but protected.

1. Prepare for Appellate Outcomes and Institutional Response: Firms involved in these cases—or observing closely—should begin scenario planning not out of political caution, but in defense of legal integrity. Preparing for appellate rulings, amicus engagement, and client communication ensures that firms remain clear-eyed and principled as the legal process unfolds.
2. Reaffirm the Value of Legal Independence: Law firms should consider restating their public commitments to professional independence and the right to represent clients without political interference. In a period of rising scrutiny, consistent and principled messaging can reinforce trust among clients, courts, and the public.

DOJ ANNOUNCES SECOND MAJOR SETTLEMENT UNDER “PROTECTING US WORKERS” INITIATIVE

• https://www.justice.gov/opa/pr/justice-department-reaches-new-settlement-protect-us-workers
• https://www.justice.gov/opa/media/1408016/dl

OVERVIEW

On July 22, the Department of Justice announced its second major settlement under the Protecting U.S. Workers Initiative, resolving claims that a Mississippi-based agricultural staffing company violated federal immigration law by favoring foreign visa holders over American workers.

According to DOJ, the company inserted “unsupported and unnecessary minimum experience requirements” into job orders—particularly for positions filled by H-2A visa holders—in ways that appeared to discourage or disqualify qualified U.S. workers. In some cases, DOJ found that the requirements were not applied consistently across similar roles or were not required for positions held by U.S. workers in comparable jobs. As part of the settlement, the company agreed not to include minimum work experience requirements in job advertisements unless those requirements are supported by a legitimate business reason and align with qualifications typically required by employers that do not rely on visa programs for similar positions.

This enforcement action reflects a growing priority of the administration to combat what it describes as “anti-American bias” in employment. Attorney General Pamela Bondi has named this initiative a key focus of DOJ immigration enforcement, and Andrea Lucas, Acting Chair of the Equal Employment Opportunity Commission, has likewise signaled that enforcement of national origin discrimination under Title VII will target hiring practices that disadvantage U.S. workers. The settlement with the Mississippi staffing firm follows a similar action announced earlier this year and reflects a broader posture of scrutiny toward employers participating in visa programs, particularly those in labor-intensive industries such as agriculture.

LEGAL INTERPRETATION

Both federal immigration and antidiscrimination laws prohibit employers from discriminating against applicants or employees on the basis of national origin or lawful citizenship status—including favoring foreign workers over U.S. citizens. Historically, these protections have been most frequently applied to protect immigrants and noncitizens from exclusion. However, the administration has made clear that it intends to enforce these same statutes in the opposite direction—protecting U.S. citizens from what it characterizes as “anti-American bias” in hiring.

This shift has significant implications for employers who participate in federal visa programs. Under both the Immigration and Nationality Act and Title VII of the Civil Rights Act, it is unlawful to impose barriers—such as unnecessary job requirements—that have the effect of disadvantaging U.S. applicants when such barriers are not equally applied to all candidates. Given the common practice among U.S. employers of hiring noncitizens through programs like H-2A (for agricultural workers) or H-1B (for skilled and professional roles), it is increasingly important to review job qualifications and recruitment practices to ensure they are legally sound. With enforcement activity in this space growing, employers should proactively consult legal counsel to assess compliance and avoid potential exposure.

BRIDGE POV

The administration’s use of immigration and antidiscrimination laws to protect U.S. citizens in the hiring process is not new in concept—but it is a marked shift in enforcement emphasis. For years, employers have been advised to avoid policies that exclude noncitizens. Now, that guidance is being turned inward: the same legal standards are being enforced to penalize employers who, in the government's view, favor foreign workers over American applicants.

This most recent settlement underscores that enforcement is not limited to paperwork violations or wage disputes. It goes directly to how job qualifications are framed, who those qualifications deter, and whether employers applying for visa labor are using neutral hiring practices across the board. The inclusion of EEOC leadership in this policy emphasis only broadens the field of risk. What began as an immigration compliance issue is quickly becoming an employment discrimination issue, too.

For employers—particularly those in agriculture, hospitality, tech, and other visa-heavy sectors—this signals a real and immediate need to reassess both recruitment design and documentation. Hiring practices that once received little attention are now subject to greater scrutiny under both immigration and anti-discrimination law.

1. Scrutinize Job Qualifications in Visa-Linked Roles: Employers who rely on visa programs—particularly H-2A and H-1B—should carefully review job postings and recruitment language to ensure that minimum qualifications are applied consistently across all applicants. Requirements that appear tailored to visa workers but are not enforced for U.S. workers may invite scrutiny under both immigration and civil rights laws.
2. Document Business Justifications for All Requirements: Legal and HR teams should work together to record and maintain clear documentation supporting the business rationale for job qualifications—especially in roles where both visa holders and U.S. citizens may apply. In enforcement actions, agencies are increasingly asking not just what requirements exist, but why.
3. Prepare for Cross-Agency Enforcement: Companies should conduct proactive internal audits of hiring practices and prepare clear response protocols for potential inquiries from DOJ or EEOC. As visa-related enforcement expands from immigration compliance to potential discrimination claims, advance preparation can significantly reduce both legal and reputational risk.

CONSERVATIVE GROUPS CONTINUE TO FILE CIVIL RIGHTS COMPLAINTS TARGETING DEI PROGRAMS

• https://aflegal.org/press-release/america-first-legal-calls-for-federal-and-state-investigations-into-cracker-barrel-over-unlawful-and-discriminatory-employment-practices/
• https://advancingdei.meltzercenter.org/cases/do-no-harm-v-lee-ii-district/
• https://advancingdei.meltzercenter.org/cases/alexandre-et-al-v-amazon-com-inc-et-al-circuit/
• https://advancingdei.meltzercenter.org/cases/american-alliance-for-equal-rights-et-al-v-chicago-city-et-al-district/

OVERVIEW

Conservative advocacy organizations, including America First Legal, continue to file administrative complaints with the Equal Employment Opportunity Commission (EEOC) alleging that various corporate DEI programs violate federal civil rights laws.

Most recently, America First Legal filed a complaint against Cracker Barrel, asserting that the company’s employment practices discriminate on the basis of race and sex. The filing cites public statements, regulatory filings, and internal policies as evidence that Cracker Barrel uses “diversity” as a proxy for race and sex. The complaint also notes the company’s recent rebranding of its “Diversity and Inclusion” efforts to “Culture and Inclusion,” and identifies the use of employee resource groups as potentially unlawful practices.

These complaints are part of an ongoing effort by advocacy groups to challenge workplace DEI programs under Title VII. While no changes in law have occurred, and courts have not issued new rulings altering the legal standards governing workplace nondiscrimination, these filings may result in agency review and have prompted some organizations to revisit the design or framing of certain DEI initiatives.

Separately, some legal challenges to explicitly race- or ethnicity-based programs have recently been resolved through settlement. The State of Tennessee agreed to repeal a statute requiring a minority member on a state licensing board. The City of Chicago settled a case involving a requirement that investors in a local development project be minority- or women-owned businesses, removing that condition. Amazon also settled a claim concerning its “Diversity Grant” program, which had offered $10,000 to eligible Black, Latino, and Native American delivery service partners.

LEGAL INTERPRETATION

Federal anti-discrimination laws prohibit the use of race in both employment and contracting decisions. Title VII of the Civil Rights Act bars racial discrimination in employment, while Section 1981 of the Civil Rights Act of 1866 prohibits racial discrimination in the making and enforcement of contracts. Over the past several years, numerous cases and administrative complaints have been filed by advocacy groups challenging corporate DEI programs under these statutes.

Both Title VII and Section 1981 generally prohibit employers and businesses from considering race as a factor in hiring, promotion, or contracting decisions. While limited exceptions exist for remedial programs aimed at addressing specific and well-documented instances of past discrimination, there is no exception under current law for broader diversity goals or generalized commitments to racial representation. As a result, companies should carefully review their DEI programs—particularly those involving targeted benefits, eligibility restrictions, or public commitments tied to race or ethnicity—to ensure compliance.

BRIDGE POV

While the recent EEOC complaints filed by groups like America First Legal have not resulted in changes to federal anti-discrimination law, they underscore the growing scrutiny DEI programs are facing—particularly those that reference race or sex in public materials, internal policies, or eligibility criteria.

The focus of these filings is often not on broad diversity goals, but on whether specific elements—such as grants, fellowships, demographic tracking, or employee resource groups—can be interpreted as offering benefits tied to protected characteristics. Even where legal liability is unlikely or untested, the regulatory and reputational attention these programs attract is increasing.

For companies, the challenge is to maintain meaningful, inclusive employee initiatives without creating compliance risk. This requires careful attention to how programs are framed, how access is structured, and how demographic goals are presented—especially as legal complaints continue to focus on language and structure rather than outcomes.

1. Review DEI Program Eligibility Criteria: Companies should review all DEI-related programs—especially grants, leadership initiatives, and pipeline efforts—to ensure eligibility is not restricted by race or sex. Programs intended to promote inclusion should be structured around objective criteria and open access where legally required.
2. Evaluate and Clarify the Role of Employee Resource Groups (ERGs): ERGs should be reviewed to confirm that participation is open to all employees and that group missions are framed around shared experiences, not exclusive identities. Internal guidance should make clear that ERGs are voluntary, inclusive spaces that do not confer employment benefits or advancement opportunities based on membership.
3. Conduct Legal Risk Audits of Public DEI Commitments: Statements in regulatory filings, ESG reports, and marketing materials should be reviewed to ensure that diversity goals are not framed in a way that implies quotas or race-based decision-making. Where diversity objectives are mentioned, they should be tied to broader business goals, equal opportunity principles, and inclusive workplace values.