By early March, a government program director was telling UCAR that he needed to “get this done quickly” and that documentation of the supercomputing center needed to be handed over “yesterday.” Even now, months after the deadline for public feedback on the decision, the government admits it hasn’t fully evaluated the comments it received. “The sequence of events strongly suggests that the outcome was predetermined,” the decision notes.
For all of those reasons, he concluded that the NSF had already reached a final decision on the transfer of the supercomputing center, and that decision was subject to review under the Administrative Procedures Act, which is what the rest of the case hinged on.
Blocked
As in so many other cases that have made their way into the courts, the government does not seem to have been prepared to offer much of a defense of its actions. The Administrative Procedures Act prohibits actions that are “arbitrary and capricious,” and Jackson found that there was a “failure to articulate any rationale” for the decision to relieve UCAR of its management role.
He noted that some internal documents introduced as evidence indicated that there was dissatisfaction with NCAR’s pursuit of climate research and hosting of scientific programs intended to improve minority participation. But the government chose not to use those as arguments, so the court didn’t need to evaluate them. UCAR, in contrast, introduced significant evidence that the decision to harm NCAR was part of a range of measures meant to pressure Colorado’s Democratic governor about an unrelated matter.
Given that, the court concluded that forcing UCAR to give up its supercomputing center was arbitrary and capricious, and thus violated the Administrative Procedures Act.
UCAR was also able to demonstrate that it was suffering irreparable harm due to the uncertainty about its future. It has experienced unusually high levels of attrition among its staff, who have a rare set of technical skills and require additional training after hiring. And it expects it will be difficult to find replacements for them.
Given those circumstances, Jackson has issued an injunction blocking the government from forcing NCAR or UCAR to give up any resources related to the supercomputing center.
There are still additional threats to NCAR, including breaking it up, transferring other resources, and even selling its Boulder headquarters. So, this victory is far from the end of the threats. But the legal issues that decided the case are likely to apply to the additional threats, unless the government has a defense that it simply chose not to present here.
