John Doe 1 v. Office of the Director of National Intelligence

majority opinion

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 25-1527

JOHN DOE 1; JOHN DOE 2; JOHN DOE 3; JOHN DOE 4; JOHN DOE 5; JOHN

DOE 6; JANE DOE 1; JANE DOE 2; JANE DOE 3; JANE DOE 4; JANE DOE 5,

Plaintiffs - Appellees,

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE; CENTRAL

INTELLIGENCE AGENCY; JOHN RATCLIFFE, in his official capacity as

Director of the Central Intelligence Agency; WILLIAM PULTE, in his official

capacity as Acting Director of National Intelligence,

Defendants - Appellants.

Appeal from the United States District Court for the Eastern District of Virginia, at

Alexandria. Anthony John Trenga, Senior District Judge. (1:25-cv-00300-AJT-LRV)

Argued: December 10, 2025 Decided: July 2, 2026

Before NIEMEYER, THACKER, and BERNER, Circuit Judges.

Affirmed by published opinion. Judge Berner wrote the majority opinion, in which Judge

Thacker joined. Judge Niemeyer wrote a dissenting opinion.

ARGUED: Jennifer L. Utrecht, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Appellants. Kevin Thomas Carroll, FLUET & ASSOCIATES,

PLLC, Tysons, Virginia, for Appellees. ON BRIEF: Brett A. Shumate, Assistant

Attorney General, Eric D. McArthur, Deputy Assistant Attorney General, Charles W.

Scarborough, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,

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Washington, D.C.; Erik S. Siebert, United States Attorney, OFFICE OF THE UNITED

STATES ATTORNEY, Alexandria, Virginia, for Appellants. Kia Rahnama, FLUET &

ASSOCIATES, PLLC, Tysons, Virginia, for Appellees.

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BERNER, Circuit Judge:

Among the promises of the Fifth Amendment is the requirement that no person be

deprived of life, liberty, or property, without due process of law. This promise of due

process has been construed to require federal government agencies to adhere to their own

binding regulations.

This case concerns efforts of the Central Intelligence Agency and Office of the

Director of National Intelligence to terminate nineteen career national intelligence officers.

Faced with impending termination, the Intelligence Officers seek to exercise rights

afforded to them by the Agencies’ regulations governing terminations. Specifically, they

wish to seek reassignment to different positions and to appeal their terminations internally.

After the Agencies made clear that they did not intend to honor these rights, the Intelligence

Officers sought a preliminary injunction.

The district court granted the Intelligence Officers’ request and issued a preliminary

injunction requiring the Agencies to adhere to their own regulations. The Agencies timely

appealed and, for the reasons that follow, we affirm.

I. Background

We begin with a brief overview of the statutory and regulatory framework

governing terminations within the Agencies. We next detail the factual background and

procedural history relevant to this appeal.

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A. Statutory and Regulatory Framework

The Intelligence Officers are career employees of either the Central Intelligence

Agency (CIA) or the Office of the Director of National Intelligence (ODNI), 1 which we

will refer to collectively as “the Agencies.” The National Security Act vests broad

discretion in the Agencies’ directors (collectively, the Directors) to terminate employees

“whenever the Director deems the termination . . . necessary or advisable in the interests

of the United States.” 50 U.S.C. §§ 3036(e)(1) (granting CIA Director discretion),

3024(l)(1) (granting Director of National Intelligence discretion commensurate with that

of “the Director of the [CIA] with respect to [ ] personnel of the [agency]”). 2 The

procedures for such terminations are governed by Agency Regulation 4-16 (Termination

Regulation). 3 The Termination Regulation reiterates that the Directors have broad

discretion, conferred upon them by Congress, to terminate employees of their Agencies

with or without cause. It also sets forth specific termination procedures that the Agencies

ODNI is a cabinet-level agency charged with overseeing the federal government

apparatus of intelligence agencies, including the CIA, the National Security Agency, and

the Defense Intelligence Agency.

The Civil Service Reform Act established a framework for evaluating adverse

personnel actions taken against federal employees. United States v. Fausto, 484 U.S. 439,

443–44 (1988). It does not apply here, however, because the employees of the Agencies

are expressly excluded from coverage. 5 U.S.C. §§ 2302(a)(2)(C)(ii)(I), 7511(b)(7)–(8).

Although titled a regulation, the Termination Regulation is not a formal regulation

published in the Federal Register. The CIA adopted the Termination Regulation to govern

its internal termination procedures. Although it has not been formally adopted by ODNI,

“[w]here there is no ODNI regulation or instruction available, ODNI applies CIA

regulations. Accordingly, ODNI follows [the Termination Regulation].” Parties’ Joint

Appendix (J.A.) 77 (Declaration of ODNI Deputy Chief Operating Officer). The

Termination Regulation is included in the Parties’ Joint Appendix starting at page 62.

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must follow in particular circumstances. Two of these procedures are relevant to this

appeal.

First, Section II(C)(4) of the Termination Regulation provides an opportunity for

certain employees to seek reassignment within their Agency rather than face termination.

Specifically, when an employee is selected for termination because of what the regulation

refers to as “excess personnel functions or needs,” a representative of the Agency must

meet with the employee to discuss possible alternative positions within the Agency.

Termination Reg. §§ II(B)(9), II(C)(4)(c). If the employee expresses interest in

reassignment, Agency staff are required to assist. Id.

Second, Section II(E) of the Termination Regulation provides a procedure for

Agency employees facing termination to appeal internally. Id. § II(E)(3)–(4). This appeal

provision covers nearly all termination decisions, including those at issue here. The

provision exempts only employees “terminated because of revocation of access to

classified information” and certain non-career employees, including, among others,

contract and reserve employees. Id. § II(E)(1)–(2).

B. Relevant Facts

Prior to learning that they were facing termination, the Intelligence Officers were

all temporarily assigned to positions related to diversity, equity, inclusion, and/or

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accessibility (DEIA) within their Agencies. 4 The duties of these positions, included, by

way of example, implementing federal civil rights laws, such as the Civil Rights Act of

1964, the Rehabilitation Act, and the Age Discrimination in Employment Act.

On the first day of his second term, President Donald Trump issued Executive Order

14151, entitled “Ending Radical and Wasteful Government DEI Programs and

Preferencing” (DEIA Executive Order I). Exec. Order No. 14151, 90 Fed. Reg. 8339 (Jan.

20, 2025). It characterizes DEIA programs as “illegal and immoral,” describes them as

causing “immense public waste and shameful discrimination,” and directs all federal

agency and department heads to “terminate, to the maximum extent allowed by law, all

DEI [and] DEIA . . . offices and positions.” Id. §§ 1, 2(b)(i).

On the second day of his second term, President Trump issued another executive

order, Executive Order 14173, aimed at eliminating DEIA programs in the federal

government. This executive order is entitled “Ending Illegal Discrimination and Restoring

Merit-Based Opportunity” (hereinafter DEIA Executive Order II). Exec. Order No. 14173,

Ending Illegal Discrimination and Restoring Merit-Based Opportunity, 90 Fed. Reg. 8633

(Jan. 21, 2025). DEIA Executive Order II purports to “enforce longstanding civil-rights

laws and to combat illegal private-sector DEI preferences, mandates, policies, programs,

and activities,” and directs “all executive departments and agencies” to “terminate all

discriminatory and illegal preferences, mandates, policies, programs, activities, guidance,

DEI stands for diversity, equity, and inclusion. The initialism DEIA includes the

addition of accessibility. The parties and the relevant Executive Orders use the terms

interchangeably.

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regulations, enforcement actions, consent orders, and requirements.” Id. § 2. It doubles

down on the critiques of DEIA programs, describing them as “undermin[ing] our national

unity,” “threaten[ing] the safety of American men, women, and children across the

Nation,” and producing “disastrous consequences.” Id. § 1.

The Office of Personnel Management (OPM), which serves as the chief human

resources agency and personnel policy manager for the federal government, issued a

memorandum implementing DEIA Executive Order I. This OPM memorandum directed

federal government agencies to place all employees working in DEIA offices on paid

administrative leave effective January 22, 2025, the day following the issuance of DEIA

Executive Order II. The Agencies complied with this directive.

Two days later, OPM issued a second memorandum entitled “Guidance Regarding

RIFs of DEIA Offices.” J.A. 232. RIF is an acronym for “reduction in force,” meaning the

termination of employees in certain positions due reorganization or lack of work, among

other reasons. See 5 U.S.C. §§ 3501 et seq.; U.S. Office of Personnel Mgmt., Reductions

in Force (RIF), https://www.opm.gov/policy-data-oversight/workforcerestructuring/reductions-in-force-rif/ [https://perma.cc/AAK9-TYK2]. In this second

memorandum, OPM directed all federal agencies to implement RIF procedures

immediately, targeting for elimination all DEIA positions and offices.

Three weeks later, the Agencies notified the Intelligence Officers, still on paid

administrative leave, that they would be terminated. The Intelligence Officers were

presented with several options regarding the timing of their final separation. The Agencies

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informed the Intelligence Officers that if they declined to select an option within a day,

they would be terminated immediately.

The Agencies have never suggested that any of the Intelligence Officers engaged in

workplace misconduct or that the terminations were motivated by performance concerns.

Rather, the Director of the CIA stated affirmatively that the decisions to terminate the

Intelligence Officers were taken to “effectuate the directives in” DEIA Executive Order I

and the corresponding OPM memoranda. J.A. 148. ODNI Deputy Chief Operating Officer

also confirmed that the Agency acted in response to these same directives.

C. Procedural History

The Intelligence Officers filed this action in the United States District Court for the

Eastern District of Virginia. They allege that the Agencies violated their Fifth Amendment

due process rights. Shortly after filing their complaint, the Intelligence Officers sought

emergency relief asking the district court to issue a temporary restraining order prohibiting

the Agencies from proceeding with the terminations. The district court denied this motion.

Approximately one month later, the Intelligence Officers filed a second motion, this time

asking for a preliminary injunction requiring the Agencies to comply with the Termination

Regulation. The district court issued the preliminary injunction. We describe each stage of

the proceedings in turn.

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(i) Request for Temporary Restraining Order

The district court held a hearing on the Intelligence Officers’ motion for a temporary

restraining order and treated the motion as a request for a preliminary injunction.

“A preliminary injunction is an extraordinary remedy never awarded as of right.”

Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain a preliminary

injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary relief, that the balance of

equities tips in his favor, and that an injunction is in the public interest.” Id. at 20. The

district court reached only the first Winter factor, concluding that the Intelligence Officers

were unlikely to succeed on the merits of their claims.

The district court explained that to prevail on a procedural due process claim a

plaintiff must first identify a property or liberty interest to which due process rights attach.

It concluded that the Intelligence Officers lack any such interest in their continued

employment because the National Security Act gives each Director discretion to “terminate

the employment of any officer or employee of [their Agency] whenever the Director deems

the termination of employment of such officer or employee necessary or advisable in the

interests of the United States.” 50 U.S.C. §§ 3036(e)(1), 3024(l)(1). This discretion, the

district court reasoned, functionally rendered the Intelligence Officers at-will employees. 5

The district court noted, however, that because the Intelligence Officers were being

terminated as part of a RIF, the Intelligence Officers were guaranteed two rights under the

An at-will employee can be “terminated for no reason, or even for an arbitrary or

irrational reason.” Shook v. NCG Acquisition, LLC, 114 F.4th 242, 245 (4th Cir. 2024).

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terms of the Termination Regulation. First, they were entitled to request reassignment.

Second, they were entitled to an internal appeal from the termination decision. While the

district court suggested that the Intelligence Officers might well succeed on a due process

claim premised on these rights, it declined to issue a preliminary injunction because the

Intelligence Officers had yet to invoke them. Consideration of claims premised on denial

of these rights would therefore be premature, according to the district court. The district

court went on to state that there was “no reason to think that [the Agencies] would not

consider such requests in good faith,” leaving open the possibility of considering a renewed

request for relief as the facts developed. J.A. 195.

(ii) Request for Preliminary Injunction

Approximately one month later, the Intelligence Officers renewed their motion for

a preliminary injunction. During the intervening period, the Intelligence Officers attempted

to invoke their rights under the Termination Regulation to seek reassignment and internally

appeal their terminations. The CIA altogether refused to provide access to these

procedures. It informed the Intelligence Officers who worked at the CIA that they were not

entitled to these rights. Although ODNI provided an avenue to appeal internally, the

Intelligence Officers’ appeals had not yet been decided at the time the renewed motion was

filed.

In their renewed motion, the Intelligence Officers relied on two legal theories to

secure their rights under the Termination Regulation. First, the failure to assure their rights

violates the Fifth Amendment due process clause. Second, it violates the principle

established by the Supreme Court in United States ex rel. Accardi v. Shaughnessy, 347 U.S.

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260 (1954), that an agency’s failure to follow its own procedures and policies can constitute

a violation of an individual’s rights. The district court concluded that the Intelligence

Officers were likely to succeed under both theories.

The district court first made a factual finding that the Agencies had terminated the

Intelligence Officers as part of RIFs. In explaining this finding, the district court pointed

to the declaration of the CIA Director—provided in connection with the litigation—stating

that he implemented the termination decisions to execute DEIA Executive Order I and to

carry out the directives in the corresponding OPM memoranda. The CIA Director stated

that he “understood these directives, in combination, effectively prescribed terminating the

employment” of the Intelligence Officers. J.A. 148. The district court pointed out that

“those reasons clearly establish that the decision to terminate [the Intelligence Officers]

was made to eliminate excess employees pursuant a reduction-in-force-action.” J.A. 254–

55. The district court noted that the ODNI Director offered no other reason for the

termination decisions and, on the basis of the record evidence, concluded that both

Agencies had carried out RIFs.

Turning to the merits, the district court identified the previously discussed rights to

seek reassignment and internally appeal the terminations. Because the Intelligence Officers

had been denied these rights, the district court concluded that they were likely to succeed

on the merits of their Fifth Amendment due process claims. The court reached the same

conclusion with respect to the Intelligence Officers’ claims brought pursuant to the Accardi

doctrine.

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As for the second Winter factor, irreparable harm, the district court identified two

sources of injury to the Intelligence Officers: 1) deprivation of their constitutional due

process rights; and 2) reputational injury resulting from the DEIA Executive Orders’

disparaging statements about DEIA programs. The district court observed that “once

deprived,” the rights assured by the Termination Regulation would be “difficult to restore

or address through non injunctive remedies.” J.A. 262.

Next, the district court addressed the third Winter factor, the balance of the equities.

The district court found it significant that the Intelligence Officers “face[d] termination

without any suggestion of wrongdoing or poor performance” and that most “were only

temporarily assigned to DEI[A] roles.” Id. It reasoned that, “[a]t bottom,” the Intelligence

Officers were “being penalized” for being in the wrong place at the “wrong time.” Id.

Moreover, “requiring the [Agencies] to follow [their] own regulations [would impose] a

minimal burden compared to both the economic and reputational harm that would plague”

the Intelligence Officers should they not be afforded their rights. Id. Thus, the district court

concluded the balance of equities tipped in favor of the Intelligence Officers.

The district court then addressed the final Winter factor, the public interest,

concluding that it too cut in favor of awarding preliminary injunctive relief. The district

court pointed to “the wealth of talent and experience” that the Intelligence Officers possess

and “offer in furtherance of the [ ] mission to protect the country from foreign and domestic

threat.” Id. at 263. It noted that, “[a]s the Supreme Court has repeatedly stated, there are

few interests that can be more compelling than the nation’s need to ensure its own security.”

Id. The district court reasoned that “the public would certainly benefit from an internal

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reassignment over hiring new personnel who require significant onboarding and training

to fill vital national security roles.” Id.

Having concluded that preliminary injunctive relief was warranted, the district court

enjoined the Agencies from “effectuating or implementing any decision to terminate the[ ]

[Intelligence Officers] without further Court authorization.” Id. at 264. It required the

Agencies to provide the Intelligence Officers with the rights in the Termination Regulation

to seek reassignment and to appeal the terminations.

The Agencies timely appealed from the grant of the preliminary injunction.

II. Analysis

We review a district court’s decision to grant or deny a preliminary injunction under

the deferential abuse of discretion standard. Real Time Med. Sys., Inc. v. PointClickCare

Tech., Inc., 131 F.4th 205, 224 (4th Cir. 2025). “[W]e may not reverse so long as the district

court’s account of the evidence is plausible in light of the record viewed in its entirety.” Id.

(quoting Roe v. Dep’t of Def., 947 F.3d 207, 219 (4th Cir. 2020)). Nevertheless, a clear

error in factual findings or an error of law is grounds for reversal. Id.

We first address our subject-matter jurisdiction. We then proceed to the merits and

hold that the district court acted within its discretion in granting the preliminary injunction.

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A. Subject-Matter Jurisdiction

The Agencies begin by questioning whether this court has jurisdiction to review the

manner in which the Director of the CIA and the Director of ODNI terminated the

Intelligence Officers. We hold that we do.

As we explained above, the National Security Act grants each Director discretion to

terminate Agency employees. 50 U.S.C. §§ 3036(e)(1), 3024(1)(1). In Webster v. Doe, the

Supreme Court held that this grant of discretion “precludes judicial review of these

decisions under the [Administrative Procedure Act].” 486 U.S. 592, 601 (1998). The

Supreme Court based this holding on the text of the National Security Act, which permits

the Directors to terminate any employee whenever they “deem such termination necessary

or advisable in the interests of the United States,” and “not simply when the dismissal is

necessary or advisable to those interests.” Id. at 600. This, reasoned the Court, means that

there is “no basis on which a reviewing court could properly assess an Agency termination

decision,” “[s]hort of permitting cross-examination of the Director” about the reasons for

the decision. Id.

The Court in Webster noted explicitly, however, that federal courts do possess

jurisdiction over constitutional challenges to a Director’s termination action. Id. at 603.

Congressional intent to “preclude judicial review of constitutional claims . . . must be

clear” because “serious constitutional question[s] [ ] would arise if a federal statute were

construed to deny any judicial forum for” review of such claims. Id. at 603 (internal

quotation marks omitted).

The National Security Act does not clearly evince congressional intent to preclude

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judicial review of the Intelligence Officers’ constitutional claims. Accordingly, we possess

jurisdiction to review them. 6 See id.

B. Preliminary Injunction

We now turn to our review of the preliminary injunction.

As a threshold matter, we hold that the district court did not err in finding that the

Intelligence Officers were terminated as part of RIFs. The district court based this factual

finding on the OPM memoranda directing all federal agencies to carry out RIFs, the CIA

Director’s declaration stating that he ordered the Intelligence Officers be terminated in

response to OPM’s “reduction-in-force” directive, and the ODNI Director’s failure to offer

any other reason for the terminations. Such a finding is certainly “plausible in light of the

record viewed in its entirety.” Real Time Med. Sys., Inc., 131 F.4th at 224. Because the

terminations were carried out pursuant to RIFs, the Agencies are bound to comply with the

sections of the Termination Regulation pertaining to terminations of excess personnel.

To obtain a preliminary injunction a plaintiff must prevail on all four Winter factors:

1) likelihood of success on the merits, 2) irreparable harm, 3) the balance of the equities,

and 4) the public interest. Winter, 555 U.S. at 20. We discern no abuse of discretion in the

district court’s conclusion that the Intelligence Officers met their burden on each factor.

As the district court noted, this court has not determined whether a claim brought

pursuant to the Accardi doctrine is constitutional in nature. We decline to dive into the

“murky waters of the doctrine and its origins,” Jefferson v. Harris, 285 F. Supp. 3d 173,

185 (D.D.C. 2018), and rest our holding solely on the Intelligence Officers’ due process

claims.

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(i) Likelihood of Success on the Merits

The Fifth Amendment assures that “[n]o person shall . . . be deprived of life, liberty,

or property, without due process of law.” U.S. Const. amend. V. The Intelligence Officers

allege that their procedural due process rights were violated when the Agencies refused to

follow the Termination Regulation. The district court concluded that the Intelligence

Officers were likely to succeed on the merits of their claims. It did not err in doing so.

To establish a procedural due process violation, a plaintiff must first identify a

protected interest—namely, life, liberty, or property. Strickland v. United States, 32 F.4th

311, 347–48 (4th Cir. 2022). After identifying such an interest, the plaintiff must then show

that she did not “receive the minimum measure of procedural protection warranted under

the circumstances.” Id. (quoting Mallette v. Arlington Cnty. Emps.’ Supplemental

Retirement Sys. II, 91 F.3d 630, 634 (4th Cir. 1996)). The district court found that the

Intelligence Officers possessed a property interest in the rights to reassignment and appeal.

The Agencies deprived the Intelligence Officers of this right without any procedural

protections. On appeal, the Agencies argue that the Intelligence Officers lack a property

interest in the rights to reassignment and appeal. We disagree.

“To have a property interest in a benefit, a person clearly must have more than an

abstract need or desire for it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577

(1972). “[I]nstead, [she] must have a legitimate claim of entitlement to it.” Id. An

entitlement to a benefit can arise out of “rules and understandings, promulgated and

fostered by [ ] officials.” Perry v. Sindermann, 408 U.S. 593, 602 (1972). A regulation

creates an entitlement when it sets the substantive rules of decision in such a way that a

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particular outcome is mandated when certain conditions are met. Stewart v. Bailey, 7 F.3d

384, 392 (4th Cir. 1993).

We provide two examples to illustrate this concept more tangibly. First, consider

the creation of an entitlement. In Strickland v. United States, the court concluded that the

Fourth Circuit’s Employment Dispute Resolution Plan (EDR Plan) created property

interests for employees. 32 F.4th at 347–50. These interests included “the right to be free

from workplace discrimination, harassment, and retaliation, the right to equal opportunities

for promotions, and the right to promotion according to [the employee’s] experience,

training, and demonstrated ability and without regard to sex.” Id. at 348 (quotation marks

omitted). Employees had a claim of entitlement to these interests because the EDR Plan

repeatedly referenced employee “rights,” detailed “what those rights are,” and outlined “a

detailed set of procedures for employees to follow if they believe[d] that any of the

substantive rights afforded to them . . . h[ad] been violated.” Id. at 349. The EDR Plan

therefore constrained the discretion of decisionmakers, and mandated a particular outcome,

under certain circumstances. If an employee alleged she had not been given an equal

opportunity for promotion, the policy dictated that the issue be addressed in accord with

procedures specified in the EDR Plan. Id. at 349–50.

In contrast, in Stewart v. Bailey this court found no claim of entitlement because the

statute at issue reserved complete discretion to the decisionmaker. 7 F.3d at 392–93. More

specifically, the statute prescribed procedures for when the director of a correctional

facility “may . . . deliver” an incarcerated individual to an officer from another jurisdiction.

Id. The statute did not mandate a particular outcome once certain conditions had been met.

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Id. Instead, the director maintained complete discretion over the ultimate decision to

transfer an incarcerated individual. Id. Accordingly, the applicable statute created no

legitimate claim of entitlement to a transfer. Id.

Thus, the question before us is whether the Termination Regulation creates an

entitlement to the rights of consideration for reassignment and internal appeal of a

termination decision. We find that it does.

Start with reassignment. The Termination Regulation constrains the discretion of

the Agencies in circumstances, like those here, where employees are terminated pursuant

to a RIF. Section II(C)(4)(c) of the Regulation specifies that under such circumstances, “[a]

representative from [the Agency] will . . . meet with the employee and determine if the

employee wishes placement elsewhere in the Agency[.]” Termination Reg. § II(C)(4)(c).

It goes on to make clear that when an employee wishes to take advantage of this procedure,

the Agency “will broker an Agency-wide placement effort.” Id. It further states that “[i]f

the employee does not wish placement elsewhere in the Agency or if placement efforts are

unsuccessful after a sufficient interval of time,” the Agency representatives may then, and

only then, recommend that the employee be formally terminated. Id. In this regard, the

Termination Regulation provides no room for discretion. As long as the employee subject

to termination chooses to pursue reassignment, the Agencies must attempt to reassign her.

The regulation thus creates an entitlement to such reassignment procedures.

Next, internal appeal. In Section II(E), the Termination Regulation specifies that the

right to appeal internally is available to all employees except those classified as “contract

employees, reserve employees, and [ ] alien employees.” Id. § II(E)(1), (3)–(4). It then

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provides that, aside from circumstances when an employee is terminated “because of

revocation of access to classified information,” “the termination decision may be

appealed[.]” Id. § II(E)(2)–(3). The regulation details the internal appeal process before

reiterating that the Agencies’ Directors ultimately retain discretion to decide whether

termination is warranted. Id. § II(E)(3)–(4). In this way, Section (II)(E) of the regulation

also constrains agency discretion. A covered employee is entitled to appeal a termination

decision internally so long as she was not terminated because her access to classified

information had been revoked. The Intelligence Officers were not terminated for this

reason. The regulation accordingly creates an entitlement to appeal as well.

The Agencies marshal four primary arguments in opposition, largely echoed by the

dissent. None of these arguments succeed.

First, the Agencies note that the Termination Regulation repeatedly reaffirms that

the Directors possess broad discretion to terminate employees. This is beside the point. The

Intelligence Officers do not claim a right to continued employment, and the district court

did not rule on this basis. It is undisputed that no such right exists. Rather, the Intelligence

Officers claim entitlement to two specific rights, both of which, as explained above, are

prescribed in the Termination Regulation. The fact that the Directors possess discretion to

terminate employees thus bears no relevance to the question of whether the Intelligence

Officers are entitled to the rights of reassignment and appeal.

Second, the Agencies point to broad language in the Termination Regulation

disclaiming the creation of employee rights. Section II(A) states, for example, that “nothing

in this [R]egulation . . . shall be construed as creating for any employee any property or

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other interests or privileges in his or her employment.” Id. § II(A). Section II(F) further

states that the regulation does not create “any substantive or procedural right, benefit, or

privilege enforceable by any party against the Agency[.]” Id. § II(F). Significantly,

however, most of this disclaiming language relates solely to termination authority, which,

as explained above, is beside the point.

While the Termination Regulation’s disclaiming language is admittedly broad, we

are compelled to construe regulations holistically. U.S. Nat. Bank of Oregon v. Ind. Ins.

Agents of Am., Inc., 508 U.S. 439, 455 (1993). This means, “at a minimum,” that we

consider the “full text.” Id.; see also Strickland, 32 F.4th at 348–52 (reviewing EDR Plan

in full). Considering the Termination Regulation in full, the best reading of the disclaiming

language is that it too reiterates that Agency employees lack a property interest in continued

employment. Requiring the Agencies to comply with their own termination procedures

does not call into question the discretion of the Directors to effectuate terminations. As the

district court correctly noted, the reassignment and appeal rights are wholly separate rights,

to which the Intelligence Officers may legitimately claim entitlement.

Third, the Agencies argue that requiring the provision of internal reassignment and

appeal rights would be nonsensical. They point out that any internal appeal, if granted,

would come before the same Director that effectuated the termination in the first place.

Termination Reg. § II(E)(4). Thus, the Agencies question what sense it would make to

provide these rights. As we have explained, the rights at issue are mandated by the

regulation. The Directors could certainly have a change of heart. It is also possible that the

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Intelligence Officers may secure reassignment to positions elsewhere in the Agencies,

hence avoiding termination altogether.

Finally, the Agencies suggest that they need not provide the rights to reassignment

or appeal because they did not follow the Termination Regulation in carrying out the RIFs.

The Termination Regulation details how the Agencies are to terminate excess personnel.

Id. § II(C)(4). To be sure, the Agencies did not follow these procedures. Prior failure to

follow the Termination Regulation, however, does not absolve the Agencies of their duty

to it going forward. The Agencies may not ignore their own procedures and then use such

noncompliance as an excuse to evade future obligations. The rights to reassignment and

appeal are triggered not only when lower-level Agency employees direct a termination, but

also when termination is directed from the top. Because, as the district court aptly found,

the terminations took place as part of RIFs, the Agencies must follow those sections of the

Termination Regulation respecting RIF terminations.

Thus, we conclude the Intelligence Officers identify a property interest in

reassignment and appeal. Because we hold that the district court did not abuse its discretion

in finding that the Intelligence Officers were likely to succeed on the merits of their

constitutional due process claims, we need not address the district court’s ruling on the

Intelligence Officers’ claims brought pursuant to the Accardi doctrine. Roe, 947 F.3d at

225 n.3 (upholding grant of a preliminary injunction based on likelihood of success of one

theory while declining to address district court’s alternative theory).

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(ii) Irreparable Harm

The Intelligence Officers must also show they are “likely to suffer irreparable harm

in the absence of preliminary relief.” Winter, 555 U.S. at 20. “Mere injuries, however

substantial, in terms of money, time and energy necessarily expended in the absence of [an

injunction] are not enough.” Roe, 947 F.3d at 229 (quoting Di Biase v. SPX Corp., 872

F.3d 224, 230 (4th Cir. 2017)). The district court found that the Intelligence Officers met

their burden on this factor. This was not an abuse of discretion.

The district court correctly noted that the denial of a constitutional right constitutes

irreparable harm. See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); Ross v. Meese, 818

F.2d 1132, 1135 (4th Cir. 1987). The district court further reasoned that reassignment and

appeal rights, “once deprived [would] be difficult to restore or address through

non-injunctive remedies.” J.A. 262. Accordingly, we agree with the district court that the

Intelligence Officers’ likelihood of success on their constitutional claims supports a finding

of irreparable harm. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 602 (4th

Cir. 2017) (“[O]ur finding that Plaintiffs are likely to succeed on the merits of their

constitutional claim counsels in favor of finding that in the absence of an injunction, they

will suffer irreparable harm.”), vacated on other grounds, 583 U.S. 912 (2017).

The district court also found that the Intelligence Officers were likely to suffer

irreparable reputational harm “given the language of” the DEIA Executive Orders. J.A.

261. It suggested the Intelligence Officers may struggle to find gainful employment in the

future and suffer from stigma as a result of the DEIA Executive Orders’ disparaging

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statements about DEIA work. This was in error because the Intelligence Officers suffer

this harm with or without the preliminary injunction.

“The role of a preliminary injunction is to protect the plaintiff from suffering new

or additional irreparable harm between the time the preliminary injunction is entered and

the case’s final resolution.” Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Soc. Sec.

Admin., 172 F.4th 361, 372 (4th Cir. 2026). The preliminary injunction in this case assures

the Intelligence Officers their rights to reassignment and appeal but does nothing to

remediate reputational injury caused by the DEIA Executive Orders. Reputational injury

thus cannot serve as the basis for irreparable harm that could result absent injunctive relief.

We nevertheless affirm the district court’s conclusion that this factor weighs in favor

of the Intelligence Officers. The constitutional violations alone suffice. See Mills v. District

of Columbia, 571 F.3d 1304, 1312 (D.C. Cir. 2009) (explaining that a likelihood of success

on the merits of constitutional claims weighs in favor of a finding of irreparable harm).

(iii) Balance of the Equities and Public Interest

We may consider the final Winter two factors—assessing the balance of the equities

and weighing the public interest—in tandem when the government is the party opposing

injunctive relief. Roe, 947 F.3d at 230. The district court did not abuse its discretion in

concluding that both favor granting the Intelligence Officers’ request.

The district court explained that “requiring the government to follow its own

regulations is a minimal burden,” particularly when compared to the “harm that would

plague [P]laintiffs if the procedures at issue are not followed.” J.A. 262. It further

concluded that “injunctive relief is in the public interest given the wealth of talent and

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experience these [P]laintiffs represent and offer in furtherance of the agency’s mission to

protect the country from foreign and domestic threats.” J.A. 263. In so reasoning, the

district court determined the balance of the equities and the public interest favored a

preliminary injunction to maintain the status quo during the litigation. This was well within

its discretion. Roe, 947 F.3d at 231.

(iv) Breadth of the Preliminary Injunction

Finally, the Agencies argue that the preliminary injunction is overly broad and, as

such, improperly intrudes on the Directors’ discretionary authority to terminate employees.

We disagree.

This court reviews the scope of a district court’s injunction, too, for abuse of

discretion. Id. “Crafting a preliminary injunction is an exercise of discretion and judgment,

often dependent as much on the equities of a given case as the substance of the legal issues

it presents.” Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 579 (2017). To be

sure, “[i]t is well established . . . that a federal district court has wide discretion to fashion

appropriate injunctive relief in a particular case.” Roe, 947 F.3d at 321 (quoting Richmond

Tenants Org., Inc. v. Kemp, 956 F.2d 1300, 1308 (4th Cir. 1992)). This deferential standard

makes good sense in light of the equitable and discretionary context. “The district court is

better positioned than we are to weigh the costs and benefits” of preliminary injunctive

relief. Lord & Taylor, LLC v. White Flint, L.P., 780 F.3d 211, 217 (4th Cir. 2015). We

grant deference to the district court’s determination in such weighing. See Roe, 947 F.3d

at 231.

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The preliminary injunction is narrow. It requires that the Agencies comply with the

two provisions of the Termination Regulation at issue in the litigation. The district court

also enjoined the Agencies “from effectuating or implementing any decision to terminate

the [Intelligence Officers] without further Court authorization.” J.A. 235. The Agencies

argue that this requirement curtails the Directors’ statutory discretion to terminate

employees. The district court’s injunction does not prevent the Directors from terminating

the Intelligence Officers. Rather, it simply prevents the Directors from implementing such

decisions without notifying the court in advance. Such notification would provide an

opportunity for the court to confirm that the Agencies complied with the Termination

Regulation. J.A. 235 (the district court would “assess the extent to which any [affected

Intelligence Officer] has received the appeal and consideration for reassignment he or she

was entitled to receive[.]”).

It was not an abuse of discretion to include this requirement. The Agencies had

already indicated that they had no intention to provide the rights assured by the Termination

Regulation. The court can only protect the rights of the Intelligence Officers if it has the

opportunity to confirm that the Agency followed the Termination Regulation. Accordingly,

we leave the scope of the preliminary injunction undisturbed.

III. Conclusion

For the reasons above, we affirm the district court’s order granting a preliminary

injunction.

AFFIRMED

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NIEMEYER, Circuit Judge, dissenting:

Responding to the President’s Executive Order No. 14151, dated January 20, 2025,

which directed agencies to close their diversity, equity, and inclusion offices on the ground

that they functioned to discriminate, the Director of the Central Intelligence Agency

(Director-CIA) and the Director of National Intelligence (Director-ODNI), exercising their

statutorily authorized discretion, terminated the employment of more than 50 employees

in the CIA and the ODNI. In doing so, the Directors relied on their discretionary authority,

conferred by statute, “to terminate the employment of any . . . employee” when the Director

“deems” it “necessary or advisable in the interests of the United States.” 50 U.S.C.

§§ 3036(e)(1), 3024(m)(1). They also relied on CIA Regulation 4-16 (“Termination of

Employment”), which confirms that the Directors may terminate “any employee” “at

any time without regard to any procedural steps set forth in this regulation or elsewhere.”

AR 4-16(II)(D). 1

Nineteen of the employees who were advised that their employment was being

terminated commenced or later joined in this action and sought a preliminary injunction to

prohibit it. They alleged, among other things, that the directives terminating

their employment denied them the benefit of the procedural rights set forth in CIA

Regulation 4-16, namely their right to be considered for placement elsewhere in the

Agency, see AR 4-16(II)(C)(4), and their right to appeal the termination decision, see AR

Because the Director-ODNI’s authority is the same as the Director-CIA’s

authority, see § 3024(m)(1), and the ODNI’s procedures here are the same, I sometimes

hereafter refer to the two collectively by reference to the Director-CIA and the CIA’s

procedures.

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4-16(II)(E), and that those procedures provided them property interests in their continued

employment, protected by the Due Process Clause of the Fifth Amendment. The district

court granted the plaintiffs a preliminary injunction, concluding that they were likely to

succeed on the merits because the Directors denied the employees their property interests

in the two procedural rights, in violation of the Due Process Clause of the Fifth

Amendment. The court held that “given the specific regulations at issue, CIA Regulation

4-16 may be enforced as a matter of constitutionally protected procedural due process.”

The court accordingly prohibited the Directors from implementing the terminations and

ordered them to apply the two procedures in AR 4-16 to the plaintiffs.

The majority now affirms, mostly on the district court’s reasoning, concluding that

AR 4-16 “creates an entitlement to . . . reassignment procedures” and “to appeal” a

termination decision which, the majority agrees, are protected as property interests under

the Fifth Amendment’s Due Process Clause. Ante at 19. Accordingly, the majority

concludes that the plaintiffs are likely to succeed on the merits and therefore affirms the

district court’s preliminary injunction.

The district court’s and the majority’s holdings, I conclude, fail with double F’s.

First, the regulation on which they rely — AR 4-16 — is irrelevant because it does not, by

its own terms, purport to regulate the discretion of the Directors. Rather, the regulation

establishes procedures for lower level employees in the agency to follow and provides that

their decisions can be appealed to the Director. Second, the unfettered discretion that

Congress gave the Directors to terminate the employment of agency employees precludes

the employees from having any entitlement to their employment and therefore precludes a

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finding that they had a property interest protected by the Fifth Amendment. In short, the

procedures for employment termination do not confer property interests protected by the

Due Process Clause.

I also add that the district court erred in concluding that the plaintiffs would suffer

irreparable harm absent injunctive relief. And even more egregiously, the district court’s

preliminary injunction inappropriately ordered that the Directors obtain the district court’s

prior approval before terminating any plaintiff’s employment in the future, usurping the

Executive function that the Constitution and Congress unambiguously committed solely to

the Executive, especially in the context of national security.

The preliminary injunction entered in this case is unlawful and should have been

promptly vacated. Now, unfortunately, that can only be done by the Supreme Court, which

I can hope will consider this wrongful intrusion, which has far-reaching and unfortunate

precedential effects.

The National Security Act of 1947 authorized both the Director-CIA and the

Director-ODNI, in their discretion and “[n]otwithstanding the provisions of any other

law,” “[to] terminate the employment of any officer or employee . . . whenever the Director

deems the termination of employment of such officer or employee necessary or advisable

in the interests of the United States.” 50 U.S.C. § 3036(e) (emphasis added); see also id.

§ 3024(m)(1). And CIA Regulation 4-16 provides similarly that the Director may, “at any

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time without regard to any procedural steps set forth in this regulation or elsewhere,”

terminate the employment of any employee when he, “in his discretion, deems it necessary

or advisable in the interests of the United States.” AR 4-16(II)(D) (emphasis added). The

regulation adds that the Director’s decision “to exercise this authority is entirely

discretionary,” that he “need not provide to anyone the reasons for exercising this authority,

and that a national security basis for the exercise of this authority is not required.” Id. And

it further confirms that the existence and exercise of the Director’s discretionary authority

is (1) “[n]ot constricted, limited, affected, or otherwise controlled by any of the procedures

set forth in this regulation or any other regulation, document, or law,” and (2) “[i]n

abrogation of the existence of any interests or privileges of any employee in his or her

employment which might otherwise be created or established by this regulation or any

other regulation, document, or law.” Id.

This unfettered discretion conferred on the Directors is necessary in the context of

their responsibilities in connection with highly confidential and sensitive national security

matters, especially because termination proceedings themselves could compromise

sensitive information.

The Supreme Court has confirmed the breadth of the discretion given by Congress

to the Directors, explaining:

This standard [as stated in 50 U.S.C. § 3036(e)] fairly exudes deference to

the Director, and appears to us to foreclose the application of any meaningful

judicial standard of review. Short of permitting cross-examination of the

Director concerning his views of the Nation’s security and whether the

discharged employee was inimical to those interests, we see no basis on

which a reviewing court could properly assess an Agency termination

decision.

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Webster v. Doe, 486 U.S. 592, 600 (1988) (emphasis added). The Court explained that

§ 3036(e) “allows termination of an Agency employee whenever the Director ‘shall deem

such termination necessary or advisable in the interests of the United States,’ not simply

when the dismissal is necessary or advisable to those interests.” Id. (cleaned up). It

concluded therefore that “[a] discharged employee thus cannot complain that his

termination was not necessary or advisable in the interests of the United States, since that

assessment is the Director’s alone.” Id. at 603 (citations omitted). And Justice O’Connor

added in her separate opinion:

The functions performed by the Central Intelligence Agency and the Director

of Central Intelligence lie at the core of the very delicate, plenary and

exclusive power of the President as the sole organ of the federal government

in the field of international relations.

Id. at 605–06 (O’Connor, J., concurring in part and dissenting in part) (cleaned up).

The Directors in this case — the Director-CIA and the Director-ODNI — relied on

their discretion to personally terminate the plaintiffs’ employment, conveying to the

plaintiffs that the Directors “deem[ed]” the terminations to be “necessary or advisable in

the interests of the United States.” And as Webster observed, the Directors’ exercise of

such broad discretion is essentially unreviewable. 486 U.S. at 600.

On January 20, 2025, President Trump issued Executive Order 14151 directing

agencies to take action within 60 days to “terminate, to the maximum extent allowed by

law, all DEI [diversity, equity, and inclusion] . . . offices and positions.” Ending Radical

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and Wasteful Government DEI Programs and Preferencing, Exec. Order No. 14,151, 90

Fed. Reg. 8339, 8339, § 2(b)(i) (January 20, 2025) (emphasis added).

On February 18, 2025, after the Director-CIA had placed affected employees on

administrative leave, he sent a memorandum to Agency leadership announcing his

“Decision to Terminate the Employment of Employees in the Former Diversity and

Inclusion Office.” The memorandum explained, “To best effectuate the President’s

direction in [E.O. 14151] . . . it is necessary or advisable in the interests of the United States

to terminate the employment of all of the employees of the former [diversity and inclusion

office] pursuant to [50 U.S.C. § 3036(e)] and consistent with [CIA Regulation 4-16].” The

memorandum also instructed agency leadership to provide employees with the options of

voluntary resignation or early retirement, if they were eligible. The Director later

confirmed that he had “determined that it was ‘necessary or advisable in the interests of

the United States to terminate all of the employees of the former [diversity and inclusion

office]’” and that he had effected the terminations under 50 U.S.C. § 3036(e)(1) and AR 4-16(II)(D) specifically, which authorizes “Termination Without Procedures.”

In early March 2025, the Director-ODNI initiated a similar process, notifying

affected employees that she was likewise closing ODNI’s diversity and inclusion office

and that the employees had the option, in lieu of being terminated, of voluntarily resigning

or, for eligible employees, retiring early.

Neither Director gave the employees whose employment was terminated any option

to consider placement elsewhere in their agency, as provided in AR 4-16(II)(C)(4). The

Director-ODNI allowed her terminated employees to “submit a request to [her] for

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reconsideration of the termination decision.” And later in March 2025, several CIA

employees, who are plaintiffs here, attempted to appeal the Director-CIA’s termination

decisions, but they were informed that no such process existed.

Originally, 11 plaintiffs commenced this action and later, when 8 more joined, they

all requested a preliminary injunction under the Due Process Clause of the Fifth

Amendment, among other laws, as the Directors “plann[ed] to terminate [them] with

insufficient notice, without any of the agency administrative procedures required by law,

and without any evidentiary record” such that their “impe[n]ding termination [was]

contrary to their constitutional right to due process before being denied their property

interest in their employment.” (Emphasis added). The plaintiffs argued that they were

denied constitutionally protected rights to reassignment consideration under AR 4-16(II)(C)(4) and to appeal under AR 4-16(II)(E).

The district court agreed with the plaintiffs and entered a preliminary injunction

enjoining the Directors from

effectuating or implementing any decision to terminate the Plaintiffs without

further Court authorization. To the extent that any such decision to terminate

any Plaintiff is submitted to the Court for approval, the Court will assess the

extent to which any such Plaintiff has received the appeal and consideration

for reassignment he or she was entitled to receive.

(Emphasis added). The injunction further ordered that the Directors “provide Plaintiffs a

requested appeal from any decision to terminate him or her, consistent with the steps set

forth in CIA Regulation 4-16” and that they “consider any Plaintiffs’ request for

reassignment for open or available positions . . . consistent with CIA Regulation 4-16

Section II. C. 4.” In support of its order, the court concluded that the plaintiffs were likely

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to succeed on the merits because they were denied the right to be considered for placement

in another component within the Agency and the right to appeal the Director’s termination

decision, referring to AR 4-16(II)(C) and (II)(E). Thus, the court concluded:

After reviewing the relevant jurisprudence, the Court concludes that under

the circumstances of this case, given the specific regulations at issue, CIA

Regulation 4-16 may be enforced as a matter of constitutionally protected

procedural due process.

(Emphasis added).

The majority’s opinion parrots the district court’s opinion, without assessing its

reasoning in any critical manner. The majority concludes that the regulatory provisions

regarding (1) consideration for placement with another component of the Agency and

(2) appeal of the Directors’ termination decisions create entitlements, thus providing the

plaintiffs with property interests protected by the Fifth Amendment. As the majority states:

As long as the employee subject to termination chooses to pursue

reassignment, the Agencies must attempt to reassign her. The regulation thus

creates an entitlement to such reassignment procedures.

* * *

A covered employee is entitled to appeal a termination decision internally

. . . [and] the regulation accordingly creates an entitlement to an appeal as

well.

Ante at 19 (emphasis added).

The district court’s and majority’s conclusion that the plaintiffs had property rights

in their employment protected by the Due Process Clause of the Fifth Amendment is

fundamentally flawed. First, the proposition is grounded in an inapplicable regulation.

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The district court and the majority fail to recognize that Congress provided the Directors

with unfettered discretion to terminate employees — for national security reasons or not

— and that any regulation that might constrict that discretion would clearly have to yield

to Congress’s directive. Indeed, the text of the regulation explicitly recognizes and

reaffirms the Director’s broad, unfettered discretion. CIA Regulation 4-16 instead

regulates agency employees’ conduct and provides terminated employees a right to appeal

lower level employee termination decisions to the Director, whose decisions are

unreviewable. Thus, AR 4-16, on which the district court and the majority rely, is simply

irrelevant to the analysis.

Second, the Agency’s procedural regulation governing the termination of

employment does not create a property interest for employees that is protected by the Due

Process Clause.

I address these points in order.

CIA Regulation 4-16, entitled “Termination of Employment,” provides procedures

that certain agency personnel must follow when terminating employees. It also states that

most termination decisions may be appealed to the Director. The regulation, however, does

not regulate the Director’s conduct or limit his discretion. To the contrary, it repeatedly

disavows application to the Director. The first section states:

By the terms of [50 U.S.C. § 3036(e)], to terminate the employment of an

Agency officer or employee, the Director of the Central Intelligence Agency

(D/CIA) need only deem employment termination necessary or advisable in

the interests of the United States. . . . Notwithstanding any provisions of this

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regulation or any other regulation, document, or law, the [Director] need not

provide to anyone the reasons for such termination if he decides not to do

so. . . . Employment may be terminated by the [Director] or by an official of

the Agency to whom the [Director] delegates appropriate authority.

AR 4-16(I) (emphasis added). The regulation then specifies the officials other than the

Director who are authorized to terminate employees — naming the Deputy Director, the

Chief of Human Resources, directors or heads of the independent offices, the Chief

Operating Officer, the Deputy Director of the Office of Security, and the Director of

National Intelligence. See id. 4-16(III).

The regulation next describes substantively every employee’s relationship with the

Agency, providing:

Agency employees do not have tenure and their employment may be

terminated pursuant to the terms of the National Security Act of 1947, as

amended, without regard to the procedural requirements of this regulation

or any other provisions of law. . . . Notice is hereby given that nothing in

this regulation or in any other regulation, document, or law shall be

construed as creating for any employee any property or other interests or

privileges in his or her employment.

AR 4-16(II)(A) (emphasis added).

The regulation then provides a list of grounds by which the authorized Agency

officials can terminate employees. See AR 4-16(II)(B). That list, however, is capped with

the obvious reservation, consistent with Section I, that “an employee may have his or her

employment be terminated whenever the [Director], in his discretion, deems such

termination necessary or advisable in the interests of the United States.” Id. 4-16(II)(B)(11).

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Finally, the regulation provides various termination procedures. But that list, too,

is again capped with the same reservation that “any employee may be terminated from the

Agency at any time without regard to any procedural steps set forth in this regulation or

elsewhere when the [Director], in his discretion, deems it necessary or advisable in the

interests of the United States.” AR 4-16(II)(D).

Addressing specifically the “Procedure for Termination of Excess Personnel”

(commonly, a reduction in force), which is the first of two sections that the district court

and the majority found to create a property interest for the plaintiffs, the regulation

provides:

If the head of a component determines that an employee is excess to the needs

of the component, both the Head of Career Service and the employee will be

advised in writing. If the employee wishes, the Career Service will make an

effort to arrange placement in another component within that Career Service.

If such efforts fail, the Career Service will declare the employee excess to

the needs of the Career Service and will notify the employee, Chief, Human

Resources, and [Director of Office Security], via [Special Activity Staff].

AR 4-16(II)(C)(4)(b) (emphasis added). The reduction-in-force procedure thus governs

when the “head of a component” makes that determination. And if the affected employees

are unable to secure a “placement in another component” satisfactory to either the

employee or the Agency, the regulation provides that the Chief Operating Officer makes

the decision to “separate” the employee from service. Id. 4-16(II)(C)(4)(c).

Addressing the right to appeal, which is the second section that the district court and

the majority found to create a property interest for the plaintiffs, the regulation provides

that employees may appeal to the Director decisions made by the Chief Operating Officer.

The regulation provides in relevant part:

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[A] termination decision may be appealed to the [Chief Operating

Officer]. . . . In cases where the [Chief Operating Officer] is the terminating

authority, for example in cases where an employee is declared excess to the

needs to the service, the employee may appeal directly to the [Director].

Employees may appeal to the [Director] in cases where the [Chief Operating

Officer] denies the initial appeal or where the [Chief Operating Officer]

serves as the terminating authority. . . . Upon receipt of an appeal, the

[Director] will decide, in his discretion, whether to terminate the individual’s

Agency employment pursuant to the [Director’s] statutory authority to do

so.

AR 4-16(II)(E)(3)–(4) (emphasis added). The Regulation thus does not provide for an

appeal of any decision made by the Director. Indeed, he is the one to whom appeals are

authorized.

It is thus textually clear that CIA Regulation 4-16, by its own language, does not

regulate the Director’s discretion. The “right” of employees to placement in another

component is given when the “head of a component” orders a reduction in force, and his

decision is reviewable by the Chief Operating Officer. And the “right” to appeal a

termination decision refers only to the ability to appeal a decision of the Chief Operating

Officer to the Director.

Moreover, when concluding that the regulation is relevant, the majority fails to

recognize that applying the regulation to the Director would be inconsistent with the

statutory authority that Congress conferred on the Director, which provides him with

virtually unfettered discretion to terminate the employment of agency employees. That

discretion is based on what the Director “deems” is in the interest of the United States,

which is a judicially unreviewable standard. See Webster, 486 U.S. at 600.

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At bottom, the regulation on which the district court and the majority relied to confer

property rights on the plaintiffs does not even apply to the circumstances here, where the

decisions to terminate the employees were made by the Directors. AR 4-16 is simply

irrelevant.

The majority’s errors are compounded by its failure to address and account for the

many provisions of AR 4-16 that preserve the Director’s unfettered discretion, such as AR

4-16(I), AR 4-16(II)(B)(11), and AR 4-16(II)(D), and that limit the applicability of the two

provisions on which the majority relies to lower level officials. Yet, the majority claims to

be “constru[ing] [the] regulation[] holistically.” Ante at 20. Obviously, it does anything

but.

More particularly, the majority argues that while the Director has discretion to

effectuate terminations, AR 4-16(II)(C)(4) requires consideration of reassignment, which

is not a “termination,” and that such consideration is mandatory. But the reassignment

procedure textually regulates only the “head of a component,” the “Head of the Career

Service,” the Chief of Human Resources, and the Chief Operating Officer. It does not

regulate the Director, yet this action is filed against the Director to prohibit his termination

of the plaintiffs’ employment, in which the plaintiffs claim to have a property interest.

Moreover, the regulation provides that such terminations can be made by the Director

“without regard to any procedural steps set forth in this regulation [AR 4-16].”

Id. 4-16(II)(D) (emphasis added).

The majority likewise errs in arguing that the right to appeal is not a termination,

and therefore the right to appeal in AR 4-16(II)(E)(4) must be given. But again, the

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regulation addresses only the right to appeal decisions of the Chief Operating Officer, not

the Director. And yet again, this action is filed against the Director to prohibit the

termination of the plaintiffs’ employment — a termination not governed by any procedural

regulation.

Finally, as the regulation is repetitive, AR 4-16(II)(A) again provides that all

terminations effected pursuant to the National Security Act of 1947 are effected “without

regard to the procedural requirements of this regulation.” And the same section further

provides that it must not be construed “as creating for any employee any property or other

interests or privileges in his or her employment.” Id.; see also id. 4-16(II)(F).

The majority ran through every such limitation in the regulation, all the while

claiming to be construing the regulation holistically.

At bottom, CIA Regulation 4-16 provides nothing relevant to the question whether

the Director’s decision to terminate the plaintiffs’ employment can be enjoined.

Relying on Webster’s holding that, although the Directors’ discretion is not subject

to judicial review, “colorable constitutional claims arising out of [their] actions” can be

judicially reviewed, see 486 U.S. at 603, the plaintiffs argued before the district court that

their “impe[n]ding termination [was] contrary to their constitutional right to due process

before being denied their property interest in their employment,” (emphasis added). The

district court agreed, enjoining the Directors “from effectuating or implementing any

decision to terminate the Plaintiffs without further court authorization.” (Emphasis added).

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And the majority concurs, affirming the district court. Yet, along the way, the plaintiffs’

interest has been recharacterized from a property interest in their continued employment to

one in the procedures of “reassignment and appeal.” Ante at 21. (Emphasis added). The

majority, however, cites no authority for the conclusion that procedures for the termination

of at-will employment confer a property interest to the employees, and in fact, the case law

rejects that view.

The foundational principles are well established. The Due Process Clause of the

Fifth Amendment provides that “[n]o person shall . . . be deprived of life, liberty, or

property, without due process of law.” U.S. Const. amend. V. And to constitute a property

interest protected by the Fifth Amendment, a plaintiff “must have a legitimate claim of

entitlement to it.” Ky. Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989) (emphasis

added); see also Stewart v. Bailey, 7 F.3d 384, 392 (4th Cir. 1993) (holding that a regulation

creates an entitlement when it sets the substantive rules of the decision in such a way that

a particular outcome is mandated when certain conditions are met).

The plaintiffs suggest, and the majority agrees, that the Directors could not have

terminated the plaintiffs’ employment without following the procedural steps created by

CIA Regulation 4-16 because the steps were mandatory. The regulation, however,

provides explicitly and repeatedly that the Director can terminate Agency employees

“without regard to any procedural steps set forth in this regulation.” AR 4-16(II)(D); see

also id. 4-16(I), (II)(A), (II)(B)(11); accord id. 4-16(II)(F). So the procedures are plainly

not mandatory for the Director. See Doe v. Casey, 796 F.2d 1508, 1519–20 (D.C. Cir.

1986) (observing, in construing nearly identical sections of a prior CIA regulation, “We

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cannot imagine how the CIA could have more plainly expressed its intent to protect the

discretion granted it by [§ 3036(e)(1)]”), aff’d in part and rev’d in part on other grounds,

Webster v. Doe, 486 U.S. 592 (1988); see Doe v. Gates, 981 F.2d 1316, 1319–20 (D.C.

Cir. 1993) (reaffirming on remand Casey’s finding that the CIA’s regulation “clearly

intended to protect” the Director’s statutory discretion).

More egregious, however, is the majority’s apparent belief that — despite its

statement to the contrary — mandatory procedures of the kind in AR 4-16 could somehow

create a property interest in the object or benefit of the procedure, i.e., the employee’s

continuing employment. But that logic is wanting. Procedural steps themselves have not,

to my knowledge, ever been considered a property interest apart from the object or benefit

of those procedures, i.e., here, in continuing employment. See Bd. of Regents v. Roth, 408

U.S. 564, 570–71 (1972) (“to determine whether due process requirements apply in the

first place, we must look . . . to the nature of the interest at stake” and whether “the interest

is within the Fourteenth Amendment’s protection of liberty and property” (emphasis

added)). Indeed, the Supreme Court has rejected the view that we should look to regulatory

procedures to define a property interest in continuing employment. In Cleveland Board of

Education v. Loudermill, the Court explained:

The point is straightforward: the Due Process Clause provides that certain

substantive rights — life, liberty, and property — cannot be deprived except

pursuant to constitutionally adequate procedures. The categories of

substance and procedure are distinct. Were the rule otherwise, the Clause

would be reduced to a mere tautology. “Property” cannot be defined by the

procedures provided for its deprivation any more than can life or liberty.

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470 U.S. 532, 541 (1985) (emphasis added). And to identify a substantive property interest,

a plaintiff must point to a statute or regulation that creates for him an “entitlement to the

benefit” at stake, and the statute or regulation must “act to limit meaningfully the discretion

of the decisionmakers” to confer the benefit. Smith v. Ashcroft, 295 F.3d 425, 429–30 (4th

Cir. 2002) (emphasis added) (cleaned up). Thus, where the underlying benefit remains

within the decisionmaker’s discretion, there is no protected interest.

In this case, the district court enjoined the termination of plaintiffs’ employment,

and to affirm that order, the majority, of necessity, must be concluding that the regulatory

procedures give the plaintiffs a property interest in continuing employment. The majority’s

own argument thus undermines that which is necessary to affirm, i.e., the finding of a

property interest in the plaintiffs’ continuing employment.

By the very terms of their employment, the plaintiffs have no property interest in its

continuation. CIA Regulation 4-16 provides that agency employees have no tenure and

that “nothing in this regulation . . . shall be construed as creating for any employee any

property or other interests.” AR 4-16(II)(A) (emphasis added). The regulation also

conveys expressly that the Director has unfettered discretion to terminate them without

following any procedures in the regulations or otherwise. Id. 4-16(II)(D). And if the

regulation was not clear enough, it further underscores that “[t]he existence or exercise of

[the Director’s] discretionary authority . . . is . . . [i]n abrogation of the existence of any

interests . . . of any employee in his or her employment which might otherwise be created

or established by this regulation.” Id. (emphasis added).

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As the Supreme Court has noted, “stated simply, [the government] creates a

protected [property] interest by placing substantive limitations on official discretion.”

Thompson, 490 U.S. at 462 (cleaned up); see also Hewitt v. Helms, 459 U.S. 460, 472

(1983) (recognizing that a property interest is established only by “substantive predicates”

that govern official decisionmaking). Here, AR 4-16 does not place any substantive

limitation on the Director’s discretion, and therefore there was no basis for the district court

to find a property interest at stake. See, e.g., Dorfmont v. Brown, 913 F.2d 1399, 1403 (9th

Cir. 1990) (noting that where the purported benefit “depends on an affirmative act of

discretion by the granting official,” there is no constitutionally protected right); Hill v.

Dep’t of Air Force, 844 F.2d 1407, 1411 (10th Cir. 1988) (noting that “[t]he notion of an

individual property right in access to the nation’s secrets — by definition a limitation on

Executive discretion — is utterly inconsistent with th[e] principle[]” that the Executive has

the responsibility for national security).

In the absence of a likely Fifth Amendment violation, which is the only law on

which the district court relied to enter its preliminary injunction, the court could not have

ordered the Directors to refrain from implementing the termination of the plaintiffs’

employment.

III

While the double-F failures are ample grounds on which to reverse, vacate, and

otherwise render the preliminary injunction null from its unlawfulness, I add also that the

district court clearly erred in concluding the plaintiffs were likely to suffer irreparable harm

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absent injunctive relief, an additional requirement for entering the injunction. See Winter

v. Nat. Res. Def. Council, 555 U.S. 7, 20 (2008).

Demonstrating irreparable harm is no easy feat. Plaintiffs must make a clear

showing that they are likely to suffer irreparable harm before the court renders a decision

on the merits. See W.V. Rivers Coal., Inc. v. Chemours Co. FC, LLC, __ F.4th __, 2026

WL 1579491, at *7 (4th Cir. 2026). And a harm that is “compensa[ble] by an award of

money damages at judgment” is generally not irreparable. Hughes Network Sys., Inc. v.

InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994).

The district court found that the plaintiffs would suffer two forms of irreparable

harm: (1) a harm merely from the violation of their constitutional rights, and

(2) reputational harm based on the allegedly pejorative reasons given in the President’s

Executive Order for eliminating DEI offices and positions. Neither withstands scrutiny.

As to the first, because the plaintiffs failed to demonstrate a colorable constitutional

violation — as I explain above — it was error to find injury of this kind. Moreover, if the

mere allegation of a constitutional violation suffices to demonstrate irreparable harm, then

almost every plaintiff who could claim a wrongful government termination could show

irreparable harm, and this would be contrary to the Supreme Court’s admonitions that a

preliminary injunction is an extraordinary form of relief, see Winter, 555 U.S. at 24, and

that irreparable harm is exceedingly rare in government employment-termination cases,

see Sampson v. Murray, 415 U.S. 61, 91–92, 92 n.68 (1974) (concluding that harms

associated with lost employment, including “loss of income” and that one’s “reputation

would be damaged as a result of the [discharge], . . . fall[] far short of the type of irreparable

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injury” necessary for preliminary relief because such harms are routine in employment

actions); accord, e.g., We The Patriots USA, Inc. v. Hochul, 17 F.4th 266, 294 (2d Cir.

2021) (explaining that it is “well settled . . . that adverse employment consequences are not

the type of harm that usually warrants injunctive relief because economic harm resulting

from employment actions is typically compensable with money damages” (citing Sampson,

415 U.S. at 91–92)) (per curiam). The requirement of irreparable harm requires a far

greater showing than that made by the plaintiffs.

And because the majority is reversing the district court’s conclusion that the

plaintiffs suffered reputational harm, I need not address that claimed injury, as I agree with

the majority on this. See Sampson, 415 U.S. at 91–92; accord, e.g., Bedrossian v. Nw.

Mem. Hosp., 409 F.3d 840, 845–46 (7th Cir. 2005) (noting that under Sampson,

“humiliation, damage to reputation, and loss of income due to [a] purportedly wrongful

termination” do not constitute irreparable harm); We The Patriots USA, Inc., 17 F.4th at

294–95 (similar).

Finally, I note that the injunction entered by the district court inappropriately

regulates exclusively Executive functions by requiring the Director-CIA and the DirectorODNI to obtain prior court approval before terminating the employment of any plaintiff.

While the injunction already prohibits the Directors from implementing their earlier

decisions to terminate the plaintiffs, it also requires the Directors to obtain court approval

before implementing any future decision to terminate the plaintiffs. Purportedly, if a

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plaintiff were now to be found to have, for example, compromised national security or even

engaged in spying against the United States, the Directors could not, under the terms of the

injunction, fire him without obtaining court approval. This aspect of the injunction is

inconsistent with applicable separation-of-power principles twice over.

First, the Executive has the exclusive authority to protect national security, and a

court impermissibly intrudes on that authority by requiring the Executive to seek judicial

approval before taking action that it has “deem[ed] . . . necessary or advisable in the

interests of the United States.” 50 U.S.C. § 3036(e)(1); see, e.g., Hegab v. Long, 716 F.3d

790, 794 (4th Cir. 2013) (emphasizing that “‘courts traditionally have been reluctant to

intrude upon the authority of the Executive in military and national security affairs’” and

should not “second-guess[] the discretionary judgment of an executive agency assessing

national security risks” (quoting Dep’t of Navy v. Egan, 484 U.S. 518, 530 (1988))); ElGanayni v. Dep’t of Energy, 591 F.3d 176, 185 (3d Cir. 2010) (“For reasons of institutional

competence, separation of powers, and deference to the Executive on national security

matters,” courts cannot review, weigh, or second guess an agency’s discretionary nationalsecurity decisions (cleaned up)).

Second, Congress has bestowed upon the Director the statutory authority to effect

employee terminations that he or she “deems” necessary, so it is again a violation of

separation-of-powers principles for a court to impede the Director from acting within his

statutorily designated authority. See, e.g., United States v. Curtiss-Wright Export Corp.,

299 U.S. 304, 319–20 (1936). As we have previously recognized, “[t]he discretionary

nature of the decision” to terminate an employee “combined with the constitutional

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delegation of the obligation to protect national security to the Executive Branch” is such

that a court cannot “be permitted ‘to intrude upon the authority of the Executive . . .’ absent

specific authorization from Congress.” Jamil v. Sec’y, Dep’t of Def., 910 F.2d 1203, 1206

(4th Cir. 1990) (quoting Egan, 484 U.S. at 527–30). This is especially so when Congress,

through 50 U.S.C. § 3036(e)(1), has told us not to do so.

Furthermore, the injunction entered by the district court mandates that the Directors

hereafter apply CIA Regulation 4-16 to circumstances to which the regulation does not

apply. Nowhere in the regulation is the Director required to provide an employee whose

employment he has terminated with an option for placement in another component. And

it is absurdity to require the Director to grant an appeal to himself of his own discretionary

decision. As explained, the regulation for termination of employment establishes

procedures within the Agency that are subject to ultimate review by the Director. But both

the regulation’s express terms, as well as logic, dictate that the Director himself or herself

is not regulated by it. It was legal error for the court to require the Directors to apply the

regulation to their decisions when the regulation does not regulate them or their broad

discretion.

* * *

The Director-CIA and the Director-ODNI terminated the plaintiffs’ employment

because the Directors “deem[ed]” it to be in the national interest. Congress has conferred

this broad discretion on them for good reason, and the Supreme Court has held that courts

essentially lack the ability to question what the Directors “deem[ed].” Moreover, the CIA

regulation governing the “Termination of Employment” repeatedly preserves the

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Director’s unbridled discretion to terminate employees at any time, without regard to any

procedural steps set forth in the regulation. At bottom, regardless of what one thinks of

these termination decisions, the Directors’ conduct violated no constitutional provision,

and both the injunction and the majority’s affirmance are egregious instances of judicial

overreach and gratuitous excess.

I would reverse and vacate the preliminary injunction entered in this case on March

31, 2025.

John Doe 1 v. Office of the Director of National Intelligence

Authorities cited

Opinion · public domain