Common Cause, Robert Hunter, Service Employees International Union Local 32BJ, and Empire State 32BJ SEIU PAC v. Department of Homeland Security; Markwayne Mullin, Secretary of the Department of Homeland Security, in his official capacity; Office of Management and Budget; Russell Vought, Director of the Office of Management and Budget, in his official capacity; Executive Office of the President; and Susie Wiles, White House Chief of Staff, in her official capacity
CourtDistrict Court, S.D. New York
Date FiledOctober 12, 2026
Docket1:26-cv-08882
StatusUnknown
📰 News Coverage: Read the LAWS.com news report on this case
Full Opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
COMMON CAUSE, ROBERT HUNTER,
SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL 32BJ, and EMPIRE STATE
32BJ SEIU PAC,
Plaintiffs,
-against-
DEPARTMENT OF HOMELAND Case No. 1:26-cv-08882 (JLR)
SECURITY; MARKWAYNE MULLIN,
Secretary of the Department of Homeland OPINION AND ORDER
Security, in his official capacity; OFFICE OF
MANAGEMENT AND BUDGET;
RUSSELL VOUGHT, Director of the Office
of Management and Budget, in his official
capacity, EXECUTIVE OFFICE OF THE
PRESIDENT; and SUSIE WILES, White
House Chief of Staff, in her official capacity,
Defendants.
JENNIFER L. ROCHON, United States District Judge:
Plaintiffs Common Cause, Robert Hunter (“Hunter”), Service Employees International
Union Local 32BJ (“SEIU 32BJ”), and Empire State 32BJ SEIU PAC (“Empire PAC”)
(collectively, “Plaintiffs”) bring this action against Defendants Department of Homeland
Security (“DHS”), Markwayne Mullin (“Mullin”), Office of Management and Budget (“OMB”),
Russell Vought (“Vought”), the Executive Office of the President (“EOP”), and Susie Wiles
(“Wiles”). See Dkt. 1 (“Compl.” or the “Complaint”). Plaintiffs challenge the use of taxpayer
funds appropriated to the Department of Homeland Security to finance a television advertisement
campaign featuring President Donald Trump in the weeks before the November 2026 midterm
elections, contending, among other things, that the expenditures exceed the purposes authorized
by Congress and violate restrictions on appropriated funds being used for publicity and
propaganda. Now before the Court is a motion filed by Plaintiffs Hunter, SEIU 32BJ, and
Empire PAC (the “Moving Plaintiffs”) on the evening of October 8, 2026, for a temporary
restraining order and stay under Section 705 of the Administrative Procedure Act (“APA”), 5
U.S.C. § 705. Dkt. 25 (“Mot.”).
The Court held a conference to discuss the motion on Friday, October 9, 2026, the
morning after the motion was filed, because the Moving Plaintiffs sought expedited relief before
the weekend, when the challenged advertisements would continue to be shown. See October 9,
2026 Transcript (“Tr.”). Defendants expressed that they needed more time to address the
substantive merits of the motion and gather the relevant factual information. Tr. at 4:1-4, 8:3-5,
19:2-4. The Court therefore permitted them additional time to respond to the motion, ordering
expedited briefing through the weekend and a follow-up conference on October 13, 2026. See
Dkt. 33. Such briefing concluded by midday on Sunday, October 11, 2026. Dkts. 37-40. In
their opposition, Defendants did not contest that the placements for the challenged
advertisements were paid for by taxpayer appropriated funds for border security, technology, and
screening and did not dispute Plaintiffs’ contention that use of those funds violated the Purpose
Act and the Appropriations Act. Instead, Defendants argued that mootness and lack of standing
deprived the Court of jurisdiction to grant relief. After reviewing the parties’ papers and
arguments, the Court informed the parties that it did not require the additional October 13, 2026
conference and issued an Order GRANTING the Moving Plaintiffs’ motion for temporary
injunctive relief in the early evening of Sunday, October 11, 2026, stating that an opinion would
follow shortly (the “October 11, 2026 Order”). See Dkt. 41. This is the opinion in support of the
October 11, 2026 Order.
BACKGROUND
“When considering a motion for [injunctive relief], . . . the Court need not accept as true
the well-pleaded allegations in Plaintiff[s’] [C]omplaint.” Nat’l Coal. on Black Civic
Participation v. Wohl, 498 F. Supp. 3d 457, 469 (S.D.N.Y. 2020) (quoting Victorio v. Sammy’s
Fishbox Realty Co., No. 14-cv-08678 (CM), 2014 WL 7180220, at *4 (S.D.N.Y. Dec. 12,
2014)); see also AIM Int’l Trading LLC v. Valcucine SpA., 188 F. Supp. 2d 384, 386 (S.D.N.Y.
2002) (“The standard for granting a temporary restraining order and a preliminary injunction
pursuant to Rule 65 of the Federal Rules of Procedure are identical.”). Instead, the “[C]ourt may
consider the entire record including affidavits and other hearsay evidence.” Park Irmat Drug
Corp. v. OptumRx, Inc., 152 F. Supp. 3d 127, 132 (S.D.N.Y. 2016) (quoting Johnson v. Newport
Lorillard, No. 01-cv-09587 (SAS), 2003 WL 169797, at *1 (S.D.N.Y. Jan. 23, 2003)). “Rule
52(a)’s requirement of findings of fact and conclusions of law upon the issuance of interlocutory
injunctions does not apply to a [temporary restraining order].” Romer v. Green Point Sav. Bank,
27 F.3d 12, 16 (2d Cir. 1994).
I. Factual Background
The present dispute concerns an advertising campaign praising the United States and
President Donald Trump and describing certain political ideologies and perceived adversaries in
sharply negative terms. In short, Plaintiffs allege that, at the direction of the EOP, federal
officials and agencies redirected taxpayer funds appropriated for border-security purposes to
finance an advertising campaign in advance of the November 3, 2026 midterm elections. See
Compl. ¶¶ 1-6, 41-47. The evidence before the Court consists of public reporting and
declarations from the Moving Plaintiffs concerning the advertisements and their asserted effect
on candidates and political organizations, as well as declarations from Defendants concerning the
allocation and use of federal funds for the advertisements.
A. Funding the Advertisements with Taxpayer Appropriated Funds
In its May 20, 2025 report accompanying H.R. 1, the House Committee on the Budget
proposed approximately $6.266 billion in separately specified appropriations for border security
technology and related activities. See H.R. Rep. No. 119-106, at 790-92 (2025). One such
appropriation was for “commemorative events honoring meritorious contributions and
achievements related to border security, including events recognizing victims of crimes.” Id. at
792. Identified “[e]xamples of such events include[d] Line-of-Duty death memorials,
Department or agency anniversaries, and commendation ceremonies,” with funding to be “used
for venue and setup, program materials, commemoratives (e.g., plaques, flags, awards)[,] and
personnel services (e.g., honor guard, officiants, security).” Id.
As enacted in July 2025, Congress reduced the total appropriation to $6.168 billion and
consolidated the separate allocations into a single lump-sum appropriation to U.S. Customs and
Border Protection (“CBP”), a component of DHS, for specified expenses related to “border
security, technology, and screening,” to remain available for obligation through September 30,
2029. See Reconciliation Act, Pub. L. No. 119-21, § 90004, 139 Stat. 72, 359 (2025) (H.R. 1)
(“[T]here is appropriated to the Commissioner of U.S. Customs and Border Protection for fiscal
year 2025 . . . to remain available until September 30, 2029, $6,168,000,000 for the
following[.]”). The listed expenses track the allocations identified in the House report but at a
higher level of generality: “[p]rocurement and integration of new nonintrusive inspection
equipment and associated civil works,” “upgrading and procurement of new platforms for rapid
air and marine response capabilities,” “[u]pgrades and procurement of border surveillance
technologies,” “[s]creening persons entering or exiting the United States,” “combating drug
trafficking,” and “[c]ommemorating efforts and events related to border security.” Id. The final
category is the subject of the parties’ dispute.
OMB initially apportioned $500,000 towards the commemorative category in November
2025.1 On September 19, 2026, at 6:15 p.m., CBP submitted a request to OMB to reapportion
funds that were appropriated by section 90004 of the Working Families Tax Cut Act (Pub. L.
No. 119-21) within CBP’s “Operations and Support” account. Dkt. 39 (“Woolf Decl.”) ¶ 3. The
CBP request sought to make an additional $20 million available for obligations under line 6043
for “commemorative events” by reallocating funds from the following fiscal year. Id. ¶ 4. The
request was approved by OMB that evening, less two hours later, at 7:50 p.m. Id. ¶ 5. OMB
increased the commemorative events line item by $20 million.2 Id. ¶¶ 3-5. The following day,
on September 20, 2026, CBP issued a $20 million purchase order to Lepugh, Inc. d/b/a LMD
Agency, Inc. (“LMD”) for a “National Media Campaign” (the “PO”),3 pursuant to a “previously
awarded” blanket purchase agreement. Dkt. 38 (“Mehringer Decl.”) ¶ 3. Holly Mehringer
(“Mehringer”), the Senior Official Performing the Duties of the Chief Financial Officer for DHS,
attests that the PO, funded by the appropriation for commemorative events, covers only the
placement — not the creation or production — of the advertisements at issue. Mehringer Decl.
1 See OpenOMB, Operations and Support, Protect Democracy Project, https://perma.cc/3LH8-
6BXF (last visited Oct. 11, 2026); see also Compl. ¶ 77 n.24; OpenOMB, Operations and
Support, Protect Democracy Project, https://perma.cc/7SKN-8B7L (last visited Oct. 11, 2026).
The Court here relies on Protect Democracy Project’s OpenOMB searchable database of federal
spending authorization, the underlying data for which comes directly from OMB. See
OpenOMB, Operations and Support, Protect Democracy Project, https://perma.cc/3LH8-6BXF
(providing “[d]ownload primary source” link); see also Approved Apportionments, OMB,
https://apportionment-public.max.gov (last visited Oct. 11, 2026) (“The public release of
apportionment documents on this website fulfills the requirement in Public Law 117-103 for
[OMB] to post each document apportioning an appropriation.”).
2 OpenOMB, Operations and Support, Protect Democracy Project, https://perma.cc/7SKN-8B7L
(last visited Oct. 11, 2026).
3 Contract Summary, USASpending.Gov, https://perma.cc/MB53-7CCC (last visited Oct. 11,
2026).
¶¶ 1, 4-6. The advertisements began airing three days later, on September 23, 2026. See
Dkt. 26-4 (“Ward-Packard Decl.”) ¶ 4. The PO’s “period of performance” is “September 20,
2026 through September 19, 2027, or until all deliverables and media placements have
occurred.” Mehringer Decl. ¶ 7.
Plaintiffs assert that the decision to use federal funds to finance these advertisements
came from the White House. Relying on reporting from the New York Times,4 Plaintiffs claim
that one month before this reapportionment of funds and the purchase order with LMD, on
August 7, 2026, President Trump, along with Wiles and others, met with Republican political
strategists to discuss the upcoming elections and the use of funds from MAGA Inc., a political
action committee, to support Republican candidates in the midterm elections.5 Compl. ¶ 41.
During that meeting, President Trump reportedly expressed a desire to promote his
administration and showed the strategists videos of himself, including footage later incorporated
into one of the challenged advertisements.6 Id. ¶¶ 42-43. Plaintiffs allege that the President
subsequently instructed Vought, OMB’s Director, to find government funds to pay for the
advertisements.7 Id. ¶ 45. Defendants do not deny that this meeting took place or dispute the
reported substance of the various discussions, even though the Court expressly asked Defendants
4 Maggie Haberman et al., Trump Directed Use of Taxpayer Money for Ads Praising His
Presidency, N.Y. Times (Oct. 2, 2026), https://perma.cc/8J9D-MLN2 (last visited October 11,
2026). Per the Times, the “article [wa]s based on interviews with 12 people familiar with the
president’s interest in the ads and how they came to be,” who “spoke on the condition of
anonymity.” Id. at 2.
5 See id. at 4-5.
6 See id.
7 See id. at 1.
during the TRO conference on October 9, 2026 to address whether they disputed the reports of
this meeting. See Tr. at 18:20-19:4, 24:23-25:3.
B. The Advertisements and Their Dissemination
Plaintiffs challenge the five government-funded advertisements that have aired to date.
See Compl. ¶¶ 46, 48, 58, 62, 67, 71. Samuel Ward-Packard (“Ward-Packard”), counsel for
Plaintiffs, states that he used AdImpact’s AdMo+ database on the morning of October 8, 2026 to
examine the government’s advertising campaign. Ward-Packard Decl. ¶¶ 2, 4.8 He identifies the
five advertisements that aired between September 23 and October 8, 2026 as: “The Country He
Loves,” “Celebrating the Enduring Spirit,” “Final Battle,” “To the Great Proud People of Iran,”
and “Maduro.” Id. ¶ 6.9 Two are thirty seconds long and three are sixty seconds long. Id. ¶ 7.10
Each contains a concluding statement that reads, “Paid for by the U.S. Government.”11
“The Country He Loves.” This 30-second advertisement first aired on September 23,
2026. Ward-Packard Decl. ¶¶ 7-8. It features images and footage of President Trump
interspersed with statements touting his administration’s accomplishments, including the “largest
8 Ward-Packard represents that “AdImpact is a paid subscription service that provides detailed,
current, highly reliable data about political advertising.” Ward-Packard Decl. ¶ 3. The
“[s]pending and impression figures” available on AdImpact’s AdMo+ dashboard are ultimately
“AdImpact estimates.” Id. ¶ 5.
9 See AdImpact Politics (@AdImpact_Pol), X (Sept. 24, 2026, at 11:30 ET),
https://perma.cc/C56Z-SQXW (last visited Oct. 11, 2026) [hereinafter The Country He Loves];
AdImpact Politics (@AdImpact_Pol), X (Sept. 25, 2026, at 08:21 ET), https://perma.cc/6DBD-
65QA (last visited Oct. 11, 2026) [hereinafter Celebrating the Enduring Spirit]; AdImpact
Politics (@AdImpact_Pol), X (Sept. 28, 2026, at 12:50 ET), https://perma.cc/8E36-2D9N (last
visited Oct. 11, 2026) [hereinafter Final Battle]; To the Great Proud People of Iran, AdImpact,
https://perma.cc/S5G3-P736 (last visited Oct. 11, 2026) [hereinafter To the Great Proud People
of Iran]; Maduro, AdImpact, https://perma.cc/P4LX-C23R (last visited Oct. 11, 2026)
[hereinafter Maduro].
10 See supra note 9.
11 See supra note 9.
tax cuts in history,” “reigniting American manufacturing,” and “defend[ing] law and order and
police.” See The Country He Loves, at 00:11, 00:13, 00:16 (capitalization omitted). The
advertisement also includes the President declaring that “[t]ogether we will defeat Communism,
Socialism, and Marxism in America,” id. at 00:00-00:04 (capitalization omitted), and that
“America will never be a Communist country,” id. at 00:04-00:07 (capitalization omitted). It
concludes with remarks by Dana White, the president of the Ultimate Fighting Championship
(UFC), describing President Trump as “the toughest, most resilient person [he has] ever met.”
See id. at 00:19-00:23 (capitalization omitted). During the final portion of the advertisement, a
disclaimer states that it was “Paid for by the U.S. Government.” Id. at 00:20-00:30.
Ward-Packard reports that, as of 11:00 a.m. Eastern time on October 8, 2026, “The
Country He Loves” had aired approximately 1,315 times, generating an estimated 95 million
impressions, at an estimated cost of more than $1.37 million. Ward-Packard Decl. ¶ 8.
“Celebrating the Enduring Spirit.” This 60-second advertisement first aired on
September 24, 2026. Id. ¶¶ 7, 9. It combines footage of Mount Rushmore, service members,
and President Trump with excerpts from a speech in which the President celebrates America’s
250th anniversary. See Celebrating the Enduring Spirit. In the advertisement, President Trump
describes the United States as “the freest people on Earth” and “the most successful, most
accomplished, most exceptional nation ever to exist in human history.” Id. at 00:10-00:12,
00:16-00:24. The advertisement also bears the government-funding disclaimer. Id. at 00:50-
01:00. Ward-Packard reports that, by October 8, 2026, the advertisement had aired
approximately 3,190 times, generating an estimated 360 million impressions at an estimated cost
exceeding $2.84 million. Ward-Packard Decl. ¶ 9.
“Final Battle.” This approximately 30-second advertisement began airing on September
26, 2026. Id. ¶¶ 7, 10. This advertisement is essentially identical to one used during President
Trump’s 2024 campaign, except that the current advertisement omits the call to support Trump
in the 2024 election and now identifies the United States government as the advertisement’s
funder. Compl. ¶ 62.12 The advertisement features black-and-white footage of the President
walking down a hallway, accompanied by recordings of his statements about his political
adversaries. See The Final Battle. Among other things, he promises to “demolish the deep
state,” id. at 00:03-00:04, “drive out the globalists,” id. at 00:07-00:09, “cast out the communists,
Marxists, and fascists,” id. at 00:09-00:12, “throw off the sick political class that hates our
country,” id. at 00:13-00:16, and “rout the fake news media,” id. at 00:17-00:19. The
advertisement concludes with the government-funding disclaimer. See id. at 00:19-00:28.
Of the five advertisements identified by Ward-Packard, “Final Battle” accounts for the
largest estimated distribution. By October 8, 2026, it had aired approximately 9,679 times,
generating an estimated 972 million impressions at an estimated cost exceeding $9.09 million.
Ward-Packard Decl. ¶ 10.
“To the Great Proud People of Iran.” This 60-second advertisement, which first aired
on October 1, 2026, id. ¶¶ 7, 11, concerns United States military operations in Iran. See To the
Great Proud People of Iran. It combines footage of the administration’s military operations with
statements by administration officials, including Pete Hegseth’s declaration that “[i]f you kill
Americans, if you threaten Americans anywhere on earth, we will hunt you down without
apology and without hesitation, and we will kill you.” Id. at 00:24-00:34. The advertisement
closes with a message from President Trump “to the great proud people of Iran,” urging them to
“take over [their] government” once the United States “[is] finished.” Id. at 00:51-01:00. As the
12 Compare Final Battle with Pollock and Pollock News Channel, Donald Trump 2024
Presidential Pounding Powerful Ad “The Final Battle”, YouTube (Apr. 14, 2024),
https://www.youtube.com/watch?v=pxZwMG3hse4 (last visited October 11, 2026) (2024
campaign ad).
President’s closing message plays, the government-funding disclaimer appears on screen. Id.
By October 8, 2026, Ward-Packard estimates that the advertisement had aired 782 times,
generating approximately 37 million impressions at an estimated cost exceeding $595,000.
Ward-Packard Decl. ¶ 11.
“Maduro.” This 60-second advertisement began airing on October 6, 2026. Id. ¶¶ 7, 12.
It concerns the operation to capture Venezuelan President Nicolás Maduro and includes footage
and statements by administration officials relating to that operation. See Maduro. The end of the
advertisement features a speech from Marco Rubio describing President Trump as “not a
president that just talks and does letters and press conferences,” id. at 00:47-00:50, and warning
“[d]on’t play games when this president’s in office because it’s not gonna turn out well,” id. at
00:54-00:57. That latter warning is followed by a clip of Maduro in handcuffs. Id. at 00:58.
Like the others, this advertisement bears a disclaimer identifying the United States government
as its sponsor. Id. at 00:50-01:00. As of October 8, 2026, Ward-Packard reports approximately
1,288 airings, 103 million estimated impressions, and advertising costs exceeding $1.47 million.
Ward-Packard Decl. ¶ 12.
In all, Ward-Packard estimates at least 16,254 airings, 1.56 billion impressions, and $15.4
million in advertising expenditures for the advertisements at issue through 11:00 a.m. on October
8, 2026. Id. ¶ 13. The campaign has appeared on nationwide broadcasts and local television in
New York and Alabama, among other markets. Id. ¶¶ 14-17. It is reported that this advertising
campaign also includes at least eight additional ads, all with similar content, that have yet to
air.13 See Compl. ¶ 83. Even though the Court asked Defendants to expressly address the
13 See Betsy Klein, ‘God made Trump’ ad and at least 12 others are part of controversial
taxpayerfunded ad campaign, CNN (Oct. 2, 2026), https://perma.cc/6BPJ-A223.
accuracy of this report and the additional ads, see Tr. at 20:25-21:8, Defendants do not dispute
this report in their opposition submissions.
C. Statements Concerning Continued Funding
On October 5, 2026, President Trump announced on Truth Social that he would begin
paying for the advertisements himself and “with money [he] raised for MAGA, Inc.” after the
“Radical Left” expressed disapproval of his decision to “pay[] for [advertisements] with U.S.A.
money.”14 Notwithstanding this posting, the advertisements continued to air after October 5,
2026, with the statement “Paid for by the U.S. Government.” Ward-Packard reports that “Final
Battle” aired 773 times on October 6 and 921 times on October 7. Ward-Packard Decl. ¶ 19. By
11:00 a.m. on October 8, it had aired more than 500 additional times, including 195 times during
Good Morning America. Id. Likewise, “Maduro” began airing on October 6, the day after the
President’s announcement, and had aired 1,288 times by October 8. Id. ¶ 20.
The advertisements also continued to appear in the markets where the Moving Plaintiffs
conduct political activities. Between early October 6 and 11:00 a.m. on October 8, 2026, “Final
Battle” aired in 1,439 national network spots, fourteen local New York spots, and at least six
local Alabama spots. Id. ¶¶ 21-22.
Defendants do not address funding of the advertising campaign by MAGA, Inc. or
President Trump. Instead, they state that LMD has “currently purchased media buys under the
terms of the [September 20, 2026 PO] through Sunday, October 11, 2026, at an approximate cost
of $19,000,000.” Mehringer Decl. ¶ 8. According to DHS, it has “directed [LMD] not to make
any media buys past October 11” and it “expects that [LMD] will submit its final invoice for
services already performed under the [September 20, 2026 PO] after that date.” Id. DHS states
14 Donald J. Trump (@realDonaldTrump), Truth Social (Oct. 5, 2026, at 18:25 ET),
https://perma.cc/Y3PJ-JC2W (last visited Oct. 11, 2026).
that any residual funding left under the PO after the final invoice is paid will be de-obligated. Id.
¶ 9. Finally, Mehringer attests that as of October 10, 2026, “to the best of [her] knowledge and
belief, [DHS] has no plans to make any additional media buys under the [September 20, 2026
PO,] . . . to renew the [September 20, 2026 PO,] or otherwise to use DHS appropriated funds on
any similar contracts for the creation or distribution of the media that is the subject of this
lawsuit[.]” Id. ¶ 10.
D. The Moving Plaintiffs
Hunter is a resident of Gadsden, Alabama, and the Democratic nominee for Alabama
House District 28. See Dkt. 26-1 (“Hunter Decl.”) ¶¶ 1-2. He identifies as a democratic
socialist, having co-founded the North Alabama chapter of the Democratic Socialists of America
(“DSA”). Id. ¶¶ 3-4. The DSA has endorsed and financially contributed to his campaign. Id.
¶ 5. Hunter’s campaign has spent $1,812 on advertising, including $168 for a newspaper
advertisement, $549 for postcards, and $895 for a billboard. Id. ¶ 7. His postcards and
canvassing materials identify him as a socialist. Id.
SEIU 32BJ is a labor union representing more than 185,000 building and service workers
across several states, including New York. Dkt. 26-3 (“Tall Decl.”) ¶¶ 1-4. Candis Tall, the
union’s Executive Vice President and Political Director, oversees its efforts to advance
legislation concerning workers and to elect candidates who support SEIU 32BJ’s priorities. See
id. ¶¶ 1, 6. To support those candidates, SEIU 32BJ contributes financial resources, organizes
volunteers, communicates with members, and operates political action committees in multiple
states, including “New York, New Jersey, Connecticut, Pennsylvania, Delaware, Maryland,
Virginia, Massachusetts, Rhode Island, New Hampshire, Florida, Kentucky, and Washington
D.C.” Id. ¶¶ 8-14.
Tall identifies two candidates whom the union supports in New York: Cait Conley, the
Democratic nominee for the House of Representatives in New York’s Seventeenth
Congressional District, and Tom Suozzi, the Democratic nominee in the Third Congressional
District. Id. ¶ 16. According to Tall, the National Republican Congressional Committee has
described Conley as a “radical Democrat” who is “cozying up to socialists” and has referred to
Suozzi as “Socialist Suozzi.” Id. Tall also describes statements in which President Trump has
characterized other candidates endorsed by SEIU 32BJ as socialists, communists, or unamerican.
Id. ¶ 17.
Empire PAC is an independent expenditure political action committee associated with
SEIU 32BJ. Dkt. 26-2 (“Banks Decl.”) ¶ 3. Kyron Banks, the union’s Deputy Political Director
for New York, states that Empire PAC seeks to elect candidates who support improved working
conditions and economic opportunities for workers. See id. ¶¶ 1, 5-6. It makes expenditures
independently of candidates and political party committees. Id. ¶ 6. For the 2026 general
election, Empire PAC has spent approximately $20,000 thus far supporting candidates including
Kathy Hochul (“Hochul”), Letitia James (“James”), Cait Conley (“Conley”), Tom Suozzi
(“Suozzi”), and Laura Gillen (“Gillen”). Id. ¶ 7. Among them, Banks identifies Conley and
Suozzi as candidates whom political opponents have associated with socialism. Id. ¶ 14.
II. Procedural History
Plaintiffs commenced this action on October 7, 2026. See Compl. The Complaint asserts
nine counts arising from the funding and dissemination of the challenged advertisements,
including claims under the APA, an equal protection theory, and non-statutory ultra vires review.
See generally id.
On the evening of October 8, 2026, Hunter, SEIU 32BJ, and Empire PAC requested
emergency relief in the form of a temporary restraining order and a stay under 5 U.S.C. § 705.
See Mot.; Dkt. 26 (“Br.”); Hunter Decl.; Banks Decl.; Tall Decl.; Ward-Packard Decl. The
Moving Plaintiffs seek, among other things, to suspend the alleged $20 million advertising
contract and OMB apportionment, prevent further use of DHS funds for the advertisements, and
require cancellation of scheduled placements and compliance reporting. See Dkt. 27 (“Proposed
Order”) at 1-2. The parties appeared before the Court on the morning of October 9, 2026 for a
conference on the motion and the Court set an expedited briefing schedule. Dkt. 33. In
accordance with that schedule, Defendants submitted their opposition brief and supporting
declarations on October 10, 2026, Dkt. 37 (“Opp.”); Mehringer Decl.; Woolf Decl., and the
Moving Plaintiffs replied on October 11, 2026, Dkt. 40 (“Reply”). The motion is fully briefed.
LEGAL STANDARD
I. Temporary Restraining Order (“TRO”)
“A temporary restraining order . . . is an extraordinary remedy that will not be granted
lightly.” Ilin v. JPMorgan Chase Bank, N.A., No. 26-cv-04816 (DEH), 2026 WL 2410796, at *1
(S.D.N.Y. Aug. 18, 2026) (quoting Jackson v. Johnson, 962 F. Supp. 391, 392 (S.D.N.Y. 1997)).
In considering the appropriateness of a temporary restraining order, courts “must examine
whether the movant[ ] ha[s] demonstrated a threat of irreparable harm that will occur
immediately to justify a temporary restraining order, while the temporal context of a preliminary
injunction takes a longer view.” Omnistone Corp. v. Cuomo, 485 F. Supp. 3d 365, 367-68
(E.D.N.Y. 2020). Thus, a “plaintiff’s demonstration of irreparable harm must be considered in
conjunction with the time frame involved.” Id. at 367.
Aside from the issue of immediate relief, the standard for granting a temporary
restraining order and preliminary injunction is the same. See Andino v. Fischer, 555 F. Supp. 2d
418, 419 (S.D.N.Y. 2008) (“It is well established that in this Circuit the standard for an entry of a
TRO is the same as for a preliminary injunction.”). “To obtain a preliminary injunction . . . the
[movant] must establish (1) that it is likely to succeed on the merits, (2) that it is likely to suffer
irreparable harm if the injunction is not granted, (3) that the balance of the equities tips in its
favor, and (4) that the injunction serves the public interest.” SAM Party of N.Y. v. Kosinski, 987
F.3d 267, 273-74 (2d Cir. 2021); accord Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20
(2008).
A heightened showing applies where, as here, a movant seeks a mandatory
injunction — an injunction that “requires the non-movant to take some action.” Daileader v.
Certain Underwriters at Lloyds London Syndicate 1861, 96 F.4th 351, 356 (2d Cir. 2024); see
Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 60 F.3d 27, 34 (2d Cir. 1995) (“A mandatory
injunction, in contrast, is said to alter the status quo by commanding some positive act.”); see
also Proposed Order at 1-2 (compelling cessation of payments and broadcasts, cancellation of
placements, and reporting requirements). In such a case, the movant must “show a clear or
substantial likelihood of success on the merits and make a strong showing of irreparable harm.”
Daileader, 96 F.4th at 356 (quoting New York ex rel. Schneiderman v. Actavis PLC, 787 F.3d
638, 650 (2d Cir. 2015)).
II. Stay Under APA § 705
Section 705 of the APA provides that, “[o]n such conditions as may be required and to
the extent necessary to prevent irreparable injury,” a reviewing court “may issue all necessary
and appropriate process to postpone the effective date of an agency action or to preserve status or
rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. The provision authorizes
interim protection pending judicial review, not a final decision on the validity of agency action.
See id. Its terms require the Court to identify the agency action whose operation would be
postponed and to tailor any process to what is necessary to preserve the relevant rights. See id.
Courts considering relief under Section 705 commonly apply the traditional preliminary
injunction factors: likelihood of success, irreparable injury, the balance of equities, and the
public interest. See, e.g., Rural & Migrant Ministry v. U.S. Env’t Prot. Agency, 565 F. Supp. 3d
578, 595 (S.D.N.Y. 2020) (“The standard for a stay under 5 U.S.C. § 705 is the same as or
similar to the standard for a preliminary injunction.”); E. Air Lines, Inc v. C a B, 261 F.2d 830,
830 (2d Cir. 1958) (per curiam) (“[S]tay of an order of an administrative agency may be granted
when the following conditions are met: (a) [w]here the petitioner is likely to prevail on the merits
of its appeal; (b) [w]here the petitioner has shown that without a stay it will suffer irreparable
injury; (c) [w]here there is no substantial harm to other interested persons; and (d) [w]here the
public interest will not be harmed.”); Nken v. Holder, 556 U.S. 418, 433-34 (2009) (setting out
the factors governing stays pending review). Although a stay and an injunction are distinct
forms of relief, see Nken, 556 U.S. at 428-29, the parties’ requests overlap here because each
seeks to prevent further operation of the challenged advertising arrangements while the case
proceeds.
DISCUSSION
The Moving Plaintiffs seek immediate relief in the form of a TRO and a Section 705 stay.
They first requested relief on October 8, 2026, see Mot., and renewed their request following
expedited briefing, urging the Court to act by October 11, 2026, before the advertisements
reached millions of additional viewers during evening programming. Reply at 1-2. Defendants
do not contest the merits of Plaintiffs’ claims. Instead, Defendants argue that injunctive relief is
unwarranted because the “alleged offending conduct will end [on October 11, 2026].” Opp. at 1.
Alternatively, Defendants contend that the Moving Plaintiffs lack standing and that even if
Hunter has standing, venue is improper. Id. at 1-2. For the reasons that follow, the Court
rejected these arguments and granted the TRO and Section 705 stay on October 11, 2026. See
Dkt. 41.
I. Mootness
The Moving Plaintiffs’ request for a temporary restraining order and Section 705 stay is
not moot. “[A] case is moot when the issues presented are no longer ‘live’ or the parties lack a
legally cognizable interest in the outcome.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)
(quotation marks and citation omitted); accord Conn. Citizens Def. League, Inc. v. Lamont, 6
F.4th 439, 444 (2d Cir. 2021) (“A case becomes moot ‘when it is impossible for a court to grant
any effectual relief whatever to the prevailing party.’” (quoting Janakievski v. Exec. Dir.,
Rochester Psychiatric Ctr., 955 F.3d 314, 319 (2d Cir. 2020))). Generally, mere “voluntary
cessation of allegedly illegal conduct does not . . . make the case moot.” United States v. W. T.
Grant Co., 345 U.S. 629, 632 (1953); Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC),
Inc., 528 U.S. 167, 189 (2000) (“It is well settled that ‘a defendant’s voluntary cessation of a
challenged practice does not deprive a federal court of its power to determine the legality of the
practice.’”); accord City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 n.10 (1982).
Under this standard, “‘voluntary cessation of a challenged practice’ will moot a case only if the
defendant can show that the practice cannot ‘reasonably be expected to recur.’” Fed. Bureau of
Investigation v. Fikre, 601 U.S. 234, 241 (2024) (quoting Friends of the Earth, 528 U.S. at 189).
This is a “formidable burden.” Id. In other words, “[a] case might become moot if subsequent
events made it absolutely clear that the allegedly wrongful behavior could not reasonably be
expected to recur.” United States v. Concentrated Phosphate Exp. Ass’n, 393 U.S. 199, 203
(1968) (emphasis added). “[S]o long as a case is not moot, litigants otherwise entitled to
emergency injunctive relief remain entitled to such relief where the[y] remain under a constant
threat that government officials will use their power to reinstate the challenged [action].”
Tandon v. Newsom, 593 U.S. 61, 63 (2021) (quotation marks and citation omitted).
Here, Defendants contend that the TRO request is moot because “there is no basis for
th[e] Court to grant injunctive relief for challenged conduct that will cease after [October 11,
2026].” Opp. at 13. The Court disagrees for several reasons.
First, Defendants acknowledged that, as of October 11, 2026, when the Court issued the
TRO, advertisements purchased using misappropriated government funds were set to run through
the end of October 11, 2026, and media buys were already purchased for evening broadcasts
from 4 p.m. through 11 p.m. Mehringer Decl. ¶ 8 (“The Vendor has currently purchased media
buys under the terms of the [PO] through Sunday, October 11, 2026.”); id. at ¶ 5 (detailing media
buys for evening programming). Because the challenged conduct was ongoing when the Court
issued the TRO, the Moving Plaintiffs’ claims presented a live controversy warranting judicial
intervention. See, e.g., Allee v. Medrano, 416 U.S. 802, 811 (1974) (“The essential controversy
is therefore not moot, but very much alive.”).
In addition, Defendants represented that DHS had “directed [LMD] not to make any
additional media buys past October 11,” Mehringer Decl. ¶ 8 (emphasis added). But this
representation is somewhat unclear and leaves open whether LMD has already purchased ad
placements scheduled to air after October 11, thereby continuing the alleged harm to Plaintiffs.
Given this lack of clarity, Defendants have not provided the Court with a reasonable assurance
that future transmissions of the advertisements purchased with funds concededly appropriated to
DHS will cease as of October 11.
Even if LMD has not purchased any further media buys for placement after October 11,
Defendants have not shown that the “allegedly wrongful behavior could not reasonably be
expected to recur.” Friends of the Earth, 528 U.S. at 189. The blanket purchase agreement with
LMD is still in effect, Mehringer Decl. ¶ 3, the “period of performance” of the PO itsel