# Urban Sustainability Directors Network v. United States Department of Agriculture

> District Court, District of Columbia · August 14, 2025

URL: https://www.frixlaw.com/law-library/cases/11120515

## Case

- **Court:** District Court, District of Columbia
- **Decided:** August 14, 2025
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Judge Beryl A. Howell
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- describing property interests in public welfare payments and in certain unique public employment contexts
- describing the Biological Opinion provided by the Fish and Wildlife Service that “explain[s] how the proposed action will affect a species or its habitat” and outlines alternatives to avoid that consequence or conditions to minimize impact before certain projects may be approved
- holding that a properly construed “cooperative agreement” is “not subject to Tucker Act review”
- describing the benefits of equitable relief requested there including “the certainty of knowing whether [certain procedures] apply” and “an answer to the question whether [the government] has authority” to take certain challenged actions

## Opinion text

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

URBAN SUSTAINABILITY DIRECTORS
NETWORK, et al.,

Plaintiffs, Civil Action No. 25-1775 (BAH)

v. Judge Beryl A. Howell

UNITED STATES DEPARTMENT OF
AGRICULTURE, et al.,

Defendants.

MEMORANDUM OPINION

Five nonprofit organizations involved in agriculture and ecology-related projects filed

suit against the United States Department of Agriculture (“USDA”) and several component

agencies (collectively, defendants) challenging the termination of six grants awarded to plaintiffs

and defendants’ alleged broader “policy, pattern, and practice of unlawfully terminating” en

masse “hundreds of grants” due to changes in agency priorities driven by certain executive

orders, notwithstanding the grants’ fulfillment of the purposes set out in authorizing statutes and

appropriations acts. See First Am. Compl. (“FAC”) ¶¶ 1-3, 11-31, 46-96, ECF No. 10. 1 A few

weeks after filing the original complaint and two days after filing the First Amended Complaint,

plaintiffs moved concurrently for a preliminary injunction and for expedited discovery to

uncover records that may aid this Court’s adjudication of the preliminary injunction motion. See

Pls.’ Mot. for PI, ECF No. 14; Pls.’ Mot. for Expedited Discovery (“Pls.’ Discovery Mot.”), ECF

1
Defendants include USDA, the Secretary of Agriculture, the U.S. Forest Service (“USFS”) and its Chief,
the Natural Resources Conservation Service (“NRCS”) and its Chief, the National Institute of Food and Agriculture
(“NIFA”) and its Director, the Department of Government Efficiency (“DOGE”) and its Acting Administrator, the
Farm Service Agency (“FSA”) and its Administrator, and the Agricultural Marketing Service (“AMS”) and its
Administrator. See FAC ¶¶ 32-45.

1
No. 15. Defendants oppose both motions. See Defs.’ Combined Opp’n to Pls.’ Mot. for PI and

Pls.’ Mot. for Expedited Discovery (“Defs.’ Opp’n”), ECF No. 22. For the reasons explained

below, this Court grants the motion for preliminary injunction in part, denies it in part, and

denies the motion for expedited discovery.

* * *

To aid in review of this Memorandum Opinion, given its length to address the myriad

issues raised by the parties, an overview is provided. Part I reviews the relevant factual and

procedural background in this case, including plaintiffs’ federal grant awards (section A.1),

defendants’ termination of these awards (section A.2), administrative appeals pursued by

plaintiffs (section B.1), the initiation of this lawsuit with a summary of the claims asserted

(section B.2), and the pending motions for preliminary injunction and expedited discovery

(section B.3).

Part II provides the legal standard governing the plaintiffs’ motion for preliminary

injunction.

Part III addresses the merits and disposition of the pending motions. Section A holds

this Court has subject matter jurisdiction over plaintiffs’ claims, contrary to defendants’

arguments that plaintiffs’ claims are essentially contractual such that the Tucker Act assigns

them exclusively to the Court of Federal Claims. Subsection 1 summarizes the current state of

the law and recent developments, and subsection 2 explains why plaintiffs’ claims here are not

contractual in nature.

Section B evaluates plaintiffs’ likelihood of success on the merits. Subsection 1

concludes that plaintiffs are not likely to succeed on their constitutional due process claims

(Counts One and Two). Subsection 2 evaluates plaintiffs’ challenges, pursuant to the

2
Administrative Procedure Act (“APA”), 5 U.S.C. § 706, and, after determining that APA review

is available (subsection 2(a)), determines that plaintiffs are not likely to succeed on their claim

that defendants violated their own regulations (Count Three) (subsection 2(b)). Plaintiffs are

likely to succeed, however, on their claim that defendants’ termination of Urban Sustainability

Network’s grant and the announced termination of Agroecology Common’s second grant are

contrary to statute (Count Five) (subsection 3(c)). They are also likely to succeed in showing

that the five grant terminations in the record were arbitrary and capricious (Count Four)

(subsection 2(d)), despite plaintiffs not making a sufficient showing that the broader alleged

policy and practice of arbitrarily terminating grants likely violates the APA.

Section C explains that plaintiffs have demonstrated they are facing or will face

irreparable harm without injunctive relief, and Section D determines that the balance of the

equities and public interest weigh in favor of granting plaintiffs’ relief. Section E describes the

appropriate relief—plaintiffs’ five grant terminations and announced termination of a sixth grant

will be preliminarily set aside and their enforcement enjoined, and no bond will be imposed.

Finally, Section F holds that plaintiffs are not entitled to expedited discovery, given the

limitations on discovery in APA cases.

Part IV provides a brief conclusion summarizing the disposition of the pending motions.

I. BACKGROUND

The factual background and procedural history relevant to the pending motion are

described below.

A. Factual Background

The five nonprofit organizations, Urban Sustainability Directors Network (“USDN”),

Oakville Bluegrass Cooperative (“OBC”), Agroecology Commons (“AC”), the Providence Farm

Collective Corp. (“PFC”), and the Institute for Agriculture and Trade Policy (“IATP”)
3
(collectively, plaintiffs) all received federal awards, under various statutorily authorized federal

programs, from the USDA or its components that were unexpectedly terminated during from

March through July of 2025, after the Trump administration announced changes in policy

priorities. See FAC ¶¶ 11-31. The following facts, based on the record currently before the

Court, are undisputed.

1. Plaintiffs’ Federal Grant Awards

The missions of each plaintiff and their respective awards at issue are summarized below.

Plaintiff USDN supports local government sustainability directors in the United States

and Canada and, as relevant here, works to promote urban sustainability and green spaces. See

Pls.’ Mot. for PI, Decl. of Jamal Brown, CFO and COO of USDN (“Brown Decl.”) ¶ 5, ECF No.

14-2. The Urban and Community Forestry Assistance Program, created by the Cooperative

Forestry Assistance Act, authorizes the Secretary of Agriculture “to provide financial, technical,

and related assistance” to state entities and in cooperation with nonprofit organizations “to

encourage cooperative efforts to plan urban forestry programs and to plant, protect, maintain, and

utilize wood from, trees in open spaces, greenbelts, roadside screens, parks, woodlands, curb

areas, and residential developments in urban areas.” 16 U.S.C. § 2105(c). This program was

intended to “improve understanding of the benefits of preserving existing tree cover in urban

areas and communities,” “implement a tree planting program to complement urban and

community tree maintenance and open space programs and to reduce carbon dioxide emissions,

conserve energy, and improve air quality in addition to providing other environmental benefits,”

and to “expand existing research and educational efforts” on “tree growth and maintenance” and

the “role of urban trees,” among several other purposes. Id. § 2105(b). In 2022, Congress

appropriated $1.5 billion to USDA specifically to “provide multiyear, programmatic, competitive

4
grants to” various entities through the Urban Forestry Assistance Program. Inflation Reduction

Act of 2022 (“IRA”), Pub. L. No. 117-169, § 23003(a)(2), 136 Stat. 1818, 2026.

Consistent with these statutory directives in both the Urban Forestry Assistance Program

and IRA, the U.S. Forest Service (“USFS”) issued a Notice of Funding Opportunity, which

indicated that USFS would prioritize projects “working to support disadvantaged communities

experiencing low tree canopy and environmental justice” and “locally led conservation and park

projects in communities that disproportionately lack access to nature and its benefits.” USDA

FOREST SERVICE URBAN & COMMUNITY FORESTRY, Inflation Reduction Act Notice of Funding

Opportunity (Apr. 12, 2023), https://iraucfgrants.urbanandcommunityforests.org/. Following a

competitive process, USDN received a $28 million award in 2023 to promote urban forestry,

increase access to urban tree canopy in disadvantaged communities, and improve resilience to

climate change and extreme heat in 25 cities around the country, including Santa Fe, New

Mexico, Stow, Ohio, and Westminster, Colorado. See Brown Decl., Ex. B, CRS/USDN USFS

Revised Project Narrative for Award Number 24-CA-11132544-016 for project titled

“Accelerating Urban Forestry as Equity Centered Climate Action and Sustainable Community

Development” at 1, 4; id. Ex. C, Federal Financial Assistance Award of Cooperative Agreement.

Plaintiff OBC helps growers transition to more “regenerative” practices that are resistant

to climate change, in part by promoting Oakville bluegrass, a climate-smart conservation cover.

Pls.’ Mot. for PI, Decl. of Jeff Thiel, Dir. of OBC (“Thiel Decl.”) ¶¶ 3-4, ECF No. 14-3. In

2022, USDA created the Partnerships for Climate-Smart Commodities Initiative as an exercise of

its authority under the Commodity Credit Corporation Charter Act, which established an entity

“within the Department of Agriculture” to “stabiliz[e], support[], and protect[] farm income and

prices, . . . assist[] in the maintenance of balanced and adequate supplies of agricultural

5
commodities,” and “facilitat[e] the orderly distribution of agricultural commodities,” 15 U.S.C.

§ 714. See Press Release No. 0038.22, USDA to Invest $1 Billion in Climate Smart

Commodities, Expanding Markets, Strengthening Rural America, USDA (Feb. 7, 2022),

https://www.usda.gov/about-usda/news/press-releases/2022/02/07/usda-invest-1-billion-climate-

smart-commodities-expanding-markets-strengthening-rural-america. The Partnership was

designed to “create market opportunities for U.S. agricultural and forestry products that use

climate-smart practices and include innovative, cost-effective ways to measure and verify

greenhouse gas benefits.” Id. The Natural Resources Conservation Service sought proposals for

funding opportunities pursuant to that program in 2022 and specified that equity and

environmental justice-focused projects would be prioritized. See USDA, Partnership for

Climate-Smart Commodities, Fiscal Year (2022) National Funding Opportunity at 2, 28 (2022),

https://www.usda.gov/sites/default/files/documents/climate-smart-nfo-usda-nrcs-comm-22-

nofo0001139-02062022-web-final.pdf. OBC received a $4.9 million award, to be paid over the

course of five years, to promote the adoption of Oakville bluegrass in specialty crop systems,

such as processed almonds. Thiel Decl. ¶¶ 4, 6, 7; id., Ex. A, Notice of Grant and Agreement

Award Number NR243A750004G031 to “expand[] markets for climate-smart agricultural

specialty crops and products in WA, OR, CA, and AZ and support[] farmer implementation and

monitoring of climate-smart practices”; id., Ex. B, Letter from Sharif Branham, Acting Dir. of

Climate-Smart Commodities Small Grants Division re: “Funding Opportunity” (Dec. 12, 2022);

Pls.’ Mem. in Supp. of Mot. for PI (“Pls.’ Mem.”) at 8, ECF No. 14-1.

Plaintiff AC aims to “cultivate community and global solidarity for decolonized land

stewardship, collective healing, and food justice,” focusing its work on the Bay Area. Pls.’ Mot.

for PI, Decl. of Leah Atwood, Dir. of Partnerships for AC (“Atwood Decl.”) ¶ 4, ECF No. 14-4.

6
The Food Stamp Act of 1977 authorizes the Secretary to “make grants to assist eligible private

nonprofit entities to establish and carry out community food projects.” 7 U.S.C. § 2034(b)(1).

Pursuant to that authority, a USDA component, the National Institute of Food and Agriculture

(“NIFA”), created the Community Food Competitive Grant Program to provide funding for

projects “address[ing] food and nutrition security, particularly among our nation’s historically

ignored communities.” See NIFA, Community Food Projects Competitive Grant Program

(CJPCGP) (last updated Aug. 4, 2025), https://www.nifa.usda.gov/grants/programs/hunger-food-

security-programs/community-food-projects-competitive-grant-program-cfpcgp. In 2024, AC

received one such grant (referred to herein as “AC Grant #1”) for just under $400,000 to support

beginning farmers, especially those from underserved backgrounds, by offering educational

resources and programs such as a Cooperative Incubator Farm. See Atwood Decl. ¶¶ 10-11; id.,

Ex. B, Project Description; Ex. C, Award Sheet for Award No. 2023-33800-40420 for “Growing

Cooperative Networks for Community Food Sovereignty, Nutrition, and Agroecological Land

Stewardship.”

AC received a second grant in 2024 for $2.5 million under the Farm Service Agency’s

Land Access Program, which was created under the American Rescue Plan Act of 2021. See

Atwood Decl. ¶¶ 15-17; id., Ex. D, Notice of Grant and Agreement Award for Award Number

FSA24GRA0011610 for “Catalyzing Equitable Access to Land, Capital, and Market

Opportunities through an Agroecologically Stewarded Land Commons, Diversified Technical

Support Program, and Resource Sharing Cooperative in the Bay Area” (“AC Grant # 2”); Pub. L.

No. 117-2, § 1006, 135 Stat. 4, 13-14. In section 1006 of the American Rescue Plan Act,

Congress appropriated money to benefit “socially disadvantaged farmers” and those historically

experiencing discrimination. 135 Stat. at 13-14. As part of the IRA, in 2022, Congress amended

7
that section to appropriate additional funds for programs to benefit “underserved farmers,

ranchers, or forest landowners, including veterans, limited resource producers, beginning farmers

and ranchers, and farmers, ranchers, and forest landowners living in high poverty areas.” IRA,

sec. 22007, § 1006(b), 136 Stat. at 2022-23; see also USDA FARM SERVICE AGENCY, Increasing

Land, Capital, and Market Access Program, https://www.fsa.usda.gov/programs-and-

services/increasing-land-access (last visited Aug. 14, 2025). AC’s project proposed purchasing

land for beginning farmers from marginalized populations in Bay Area communities where

access to land and capital is challenging and then supporting them in developing partnerships,

expanding education, etc. See Atwood Decl., Ex. E, Catalyzing Equitable Access Project

Description.

Plaintiff PFC cultivates “farmer-led and community-rooted agriculture and food systems

to actualize the rights of under-resourced people.” Pls.’ Mot. for PI, Decl. of Kristin Heltman-

Weiss, Exec. Dir. of PFC (“Heltman-Weiss Decl.”) ¶ 4, ECF No. 14-5. In the Agriculture

Improvement Act of 2018, Pub. L. No. 115-334, 132 Stat. 4490, 4953, Congress directed the

Secretary to “make competitive grants or enter into cooperative agreements to support new and

established local and regional training, education, outreach, and technical assistance initiatives to

increase opportunities for beginning farmers and ranchers.” 7 U.S.C. § 2279(d)(1). Recipients

could be a “collaborative State, Tribal, local, or regionally-based network or partnership of

public or private entities.” Id. § 2279(d)(3)(A). Under that direction, NIFA developed the

Beginner Farmer Program, which provides funding for “education, mentoring and technical

assistance to supply beginning farmers and ranchers with the knowledge, skills, and tools needed

to make informed decisions for their operations and enhance their sustainability.” NIFA,

Beginning Farmer and Rancher Development Program Fact Sheet (last updated June 30, 2025),

8
https://www.nifa.usda.gov/grants/programs/beginning-farmer-rancher-development-program-

bfrdp/fact-sheet. NIFA stated that it would prioritize programs targeted at socially

disadvantaged communities. See Pls.’ Mem. at 11. PFC received in 2023 a Beginner Farmer

Program award of around $750,000 over three years for a project on “Empowering Refugee,

Immigrant, and Black Beginning Farmers through Personalized, Culturally Adapted Training and

Education at PFC.” See Heltman-Weiss Decl., Ex. C, Award Face Sheet for Award No. 2023-

49400-40904 for “Empowering Refugee, Immigrant, and Black Beginning Farmers Through

Personalized, Culturally Adapted Training and Education at PFC.” The program consists of an

incubator farm in western New York and related educational programs. See Heltman-Weiss

Decl. ¶¶ 8, 10, 12, 13.

Lastly, plaintiff IATP “works locally and globally at the intersection of policy and

practice to ensure fair and sustainable food, farm, and trade systems.” Pls.’ Mot. for PI, Decl. of

Erin McKee VanSlooten, Community Food Systems Program Dir. (“McKee Van Slooten Decl.”)

¶ 3, ECF No. 14-16. The Agriculture Marketing Act of 1946, as amended in § 10102 of the

Agriculture Improvement Act of 2018, created the “Local Agriculture Market Program,” which

“supports the development, coordination, and expansion of . . . local and regional food markets

and enterprises,” “connects and cultivates regional food economies through public-private

partnerships,” and “supports the development of business plans . . . for value-added agricultural

production and local and regional food system infrastructure,” among other things. 7 U.S.C.

§ 1627c(b). The Secretary is authorized under this Act to issue grants to further these statutory

aims, as specifically articulated in § 1627(d). USDA’s Agricultural Marketing Service (“AMS”)

developed the Regional Food System Partnerships program under such authority, specifically to

provide funding for projects to plan and develop local or regional food systems and economies.

9
See AMS, Regional Food System Partnerships Fiscal Year 2023 Request for Applications at 2

(2023), https://www.ams.usda.gov/sites/default/files/media/2023_RFSP_RFA.pdf. IATP was

awarded a grant in 2023 for $111,694 over a period of two years for a project supporting

Minnesota farm and food systems organizations. See McKee Van Slooten Decl., Ex. A, Notice

of Award for Award No. 23RFSPMN1076-00 for “Community Storytelling to Educate and

Advocate Growing Minnesota Farm and Food Democracy”; id., Ex. B, Project Description.

2. Terminations

Five of plaintiffs’ grants described, supra Part I.A.1, have been prematurely terminated

with the sixth slated for imminent termination. The parties agree that these terminations were the

outgrowth of at least two executive orders issued by President Trump shortly after he took office

for his second term. See Pls.’ Mem. at 13-14; Defs.’ Opp’n at 5. Immediately upon entering

office, Trump issued Executive Order 14151, “Ending Radical and Wasteful Government DEI

Programs and Preferencing,” which instructed the Director of the Office of Management and

Budget (“OMB”), the Director of the Office of Personnel Management and the Attorney General

to “coordinate the termination of all discriminatory programs, including illegal DEI and

‘diversity, equity, inclusion, and accessibility’ (DEIA) mandates, policies, programs,

preferences, and activities in the Federal Government, under whatever name they appear.” 90

Fed. Reg. 8339, 8339 (Jan. 20, 2025). Just a few weeks later, the President issued Executive

Order 14222, “Implementing the President’s ‘Department of Government Efficiency’ Cost

Efficiency Initiative,” which instructed heads of agencies, in consultation with Department of

Government Efficiency (“DOGE”) leadership, to “review all existing covered contracts and

grants and, where appropriate and consistent with applicable law, terminate or modify . . . such

covered contracts and grants to reduce overall Federal spending or reallocate spending to

10
promote efficiency and advance the policies of my Administration.” 90 Fed. Reg. 11,095,

11,095-96 (Feb. 26, 2025). 2

The Secretary of Agriculture subsequently released a press statement, in mid-February

2025, indicating that she would review thousands of grants “per the President’s directives.”

Press Release No. 0023.25, Secretary Rollins Takes Bold Action to Stop Wasteful Spending and

Optimize USDA to Better Serve American Agriculture, USDA (Feb. 14, 2025),

https://www.usda.gov/about-usda/news/press-releases/2025/02/14/secretary-rollins-takes-bold-

action-stop-wasteful-spending-and-optimize-usda-better-serve-american. This press release was

followed, in mid-March, with another press release announcing that she had “cut[] wasteful

spending and sav[ed] American taxpayers millions.” Press Release No. 0049.25, Secretary

Brooke Rollins Takes Bold Action in First 30 Days at USDA, USDA (Mar. 13, 2025),

https://www.usda.gov/about-usda/news/press-releases/2025/03/13/secretary-brooke-rollins-

takes-bold-action-first-30-days-usda.

On March 13, 2025, the Secretary issued two memoranda. The first, titled “Directive on

Conservation and Natural Resources Priorities,” described the agency’s priorities, stating that

they “include ensuring that its grants, cooperative agreements, and other similar arrangements

. . . do not support programs or organizations that promote or take part in climate change or

environmental justice initiatives.” USDA Secretary’s Memorandum 1078-003 (Mar. 13, 2025),

https://www.usda.gov/directives/sm-1078-003. She instructed that “all USDA agencies and staff

2
Plaintiffs also point to two other executive orders as driving the termination decisions made here: Executive
Order 14173, “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” 90 Fed. Reg. 8,633, 8,634
(Jan. 31, 2025), which instructs agency heads to “excise references to DEI and DEIA principles . . . from Federal
acquisition, contracting, grants, and financial assistance procedures,” and Executive Order 14154, “Unleashing
American Energy,” 90 Fed. Reg. 8,353, 8,353-54, 8,357 (Jan. 29, 2025), which instructed agencies to “immediately
pause the disbursement of funds appropriated through the Inflation Reduction Act of 2022” and review grants for
“consistency with the” new policy of prioritizing domestic energy production. See Pls.’ Mem. at 13.

11
offices that issue awards must conduct an internal review of all active awards” to “ensur[e] that

the Department does not fund programs or organizations that promote or take part in climate

change or environmental justice initiatives that are either contrary to law or to the Department’s

policy objectives.” Id. Such grants should be “terminated in whole or in part or otherwise

modified to minimize the scope of the Department’s obligations.” Id. The second

memorandum, titled “Directive on Departmental Grant and Cooperative Agreement Priorities,”

further articulated priorities, including “ensuring that the Department’s grants . . . do not support

programs or organizations that promote or take part in diversity, equity, and inclusion (‘DEI’)

initiatives or any other initiatives that discriminate on the basis of race, color, religion, sex,

national origin, or another protected characteristic.” USDA Secretary’s Memorandum 1078-004

(Mar. 13, 2025), https://www.usda.gov/sites/default/files/documents/sm-1078-004.pdf. “Awards

deemed inconsistent” with that priority “shall, to the extent permitted by applicable law, be

terminated in whole or in part.” Id.

Both before and in the months following the issuance of the Secretary’s March 13, 2025,

memoranda, plaintiffs’ grants were terminated via letter notification. USDN received a letter on

April 2, 2025, informing the organization that its grant was terminated. This letter expressed

“[t]he Department’s priorities,” including “ensuring that its grants, cooperative agreements, and

other similar arrangements do not support programs that promote or take part in climate change

or environmental justice initiatives” and “assess[ing] both whether all award payments are free

from fraud, abuse, and duplication and whether they are in the best interests of the United

States.” Brown Decl., Ex. A, Letter from Lisa Northrup, Associate Deputy Chief of State,

Private, and Tribal Forestry, to Brown at 1 (Apr. 2, 2025) (“USDN Termination Letter”).

The letter then turned to the specific reason for the grant termination, stating:

12
The award specified above provides funding for programs that promote or take
part in climate change or environmental justice initiatives; that conflict with the
Department’s policies and priorities; that are not free from fraud, abuse, or
duplication; or that otherwise fail to serve the best interests of the United States.
The award is therefore inconsistent with, and no longer effectuates, Department
priorities. See 2 C.F.R. § 200.340(a)(4). Pursuant to, among other authorities, 2
C.F.R. §§ 200.339-343, which are applicable to your award, the Department
hereby terminates [your] award.

Id. The termination letter references a regulation, codified at 2 C.F.R. § 200.340(a), which

provides four bases for termination of “federal award[s],” including “fail[ing] to comply with the

terms and conditions of the Federal award,” id. § 200.340(a)(1), and “pursuant to the terms and

conditions of the Federal award, including, to the extent authorized by law, if an award no longer

effectuates the program goals or agency priorities,” id. § 200.340(a)(4), as articulated in the

USDN Termination Letter. 3 Though the letter mentions four “Department priorities”—i.e., “(1)

not support[ing] programs that promote or take part in climate change” or (2) “environmental

justice initiatives” and ensuring programs are (3) “free from fraud, abuse, and duplication” and

(4) “in the best interests of the United States”—no explanation is provided as to how USDN’s

award conflicted with any one of these particular priorities to warrant termination. USDN

Termination Letter at 1. The letter concludes with close-out processes, such as submission of

final reports, and under the title of “appeal process,” a reference to the “disputes” provision “of

the award document.” Id. at 2.

OBC’s grant was terminated, on April 14, 2025, by a more specific, though terser letter.

See Thiel Decl., Ex. D, Letter from Aubrey Bettencourt, Chief of the Natural Resources

Conservation Service, to “Recipient” (Apr. 14, 2025) (“OBC Termination Letter”). The OBC

3
The letter also cites to four other provisions of the federal regulations regarding termination: § 200.339,
which includes termination as an option where “noncompliance cannot be remedied by imposing specific
conditions”; § 200.341, which establishes a requirement for written notice of termination; § 200.342, which requires
agencies to offer opportunities to object to a remedy for noncompliance; and § 200.343, which explains the effects
of termination of an award on costs incurred by the recipient during or after the termination.

13
termination letter informed OBC that upon review, the agency “overhauled [Partnership for

Climate Smart Commodities] . . . and identified changes to better align the initiative with USDA

priorities.” Id. Listing three “Farmer First” priorities, the letter stated that OBC’s project “failed

to meet the first priority,” i.e., that “[a] minimum of 65% of federal funds must go to producers,”

without elaboration into how OBC failed to meet this priority. Id. OBC was given an

opportunity to “resubmit a proposal that will be evaluated using the Farmer First policy

priorities,” id., and has pursued this resubmission opportunity, but so far without results, see

Rough Draft Tr. of Hearing on Mots. for PI and Expedited Discovery (Aug. 6, 2025) (“Rough

Hr’g Tr.”) at 16:13-17:9.

AC’s Grant #1, which created a cooperative incubator program, was terminated on March

7, 2025, before the Secretary’s issuance of the March 13, 2025, memoranda. See Atwood Decl.,

Ex. A, Letter from Matthew Faulkner, Deputy Director of Office of Grants and Financial

Management, to Atwood (Mar. 7, 2025) (“AC Termination Letter #1”). The termination was

described as “in accordance with 2 C.F.R. § 200.340(a)(4) and the terms and conditions of the

award. NIFA has determined that award 2023-33800-40420 no longer effectuates USDA

priorities, which are to maximize and promote American agriculture; ensure a safe, nutritious,

and secure food supply; enhance rural prosperity; and protect our National forests.” Id. The

letter provided no explanation as to why the award did not effectuate those policies, and merely

gave instructions on submitting final reports and final payment requests and retaining records

with no reference to any option for administrative appeal. Id.

AC’s Grant #2, designed to help farmers from disadvantaged backgrounds access land

capital and resources, has not yet been terminated, though its funds have been frozen since

February 2025. See FAC ¶ 22; see also Pls.’ Notice of Factual Development at 1 n.1, ECF No.

14
26 (confirming that AC has not received formal notice of termination of this grant as of July 24,

2025). On June 17, 2025, the Secretary issued a press release announcing that USDA would

terminate a $2,500,000 grant for “[e]xpanding equitable access to land, capital, and market

opportunities for underserved producers in the Bay Area,” referring to AC’s second grant. Press

Release 0136.25, Secretary Rollins Takes Bold Action to Put American Farmers First, Cuts

Millions in Woke DEI Funding, USDA (June 17, 2025), https://www.usda.gov/about-

usda/news/press-releases/2025/06/17/secretary-rollins-takes-bold-action-put-american-farmers-

first-cuts-millions-woke-dei-funding. The statement referred to “millions of dollars . . . being

wasted on woke DEI propaganda.” Id. Defendants confirm that AC’s second grant is “slated for

termination.” Defs.’ Opp’n at 8.

PFC’s grant was terminated on April 25, 2025, with a letter focusing on USDA’s

rejection of DEI initiatives. See Heltman-Weiss, Ex. A, Letter from Faulkner to Bari Zeiger, Dir.

of Finance & Grants at PFC (Apr. 25, 2025) (“PFC Termination Letter”). The termination letter

included a paragraph similar in form to the explanatory paragraph in the USDN Termination

Letter but targeted DEI initiatives rather than climate change as the problematic policy, stating:

It is a priority of the Department of Agriculture to eliminate discrimination in all
forms throughout the United States. The Secretary of Agriculture has determined,
per the Department’s obligations to the Constitution and laws of the United
States, that priority includes ensuring that the Department’s awards do not support
programs that promote or take part in diversity, equity, and inclusion (“DEI”)
initiatives or any other initiatives that discriminate on the basis of race, color, sex,
national origin, or another protected characteristic. . . . In addition to complying
with the letter and spirit of the civil rights laws, it is vital that the Department
assess whether all awards are free from fraud, abuse, and duplication, as well as to
assess whether current awards are in the best interests of the United States.

Like the USDN Termination Letter, the letter then listed several potential bases for termination

without identifying a specific reason:

Termination. The award specified above provides funding for programs that
promote or take part in DEI initiatives or other initiatives that unlawfully
15
discriminate on the basis of race, color, religion, sex, national origin, or another
protected characteristic; that violate either the letter or purpose of Federal civil
rights laws; that conflict with the Department’s policies and priorities; that are not
free from fraud, abuse, or duplication; or that otherwise fail to serve the best
interests of the United States. The award is therefore inconsistent with, and no
longer effectuates, Department priorities. See 2 C.F.R. § 200.340(a)(4). Pursuant
to, among other authorities, 2 C.F.R. §§ 200.339-43, which are applicable to your
award, the Department hereby terminates [it] in its entirety.

PFC Termination Letter at 1. The letter did not explain why the award conflicted with those

priorities or what aspects of the award were discriminatory, nor did it address reliance interests,

and merely explained the provisions for submitting final reports and final payment requests and

pursuing an administrative appeal. See id. at 1-2.

Finally, IATP’s award was terminated on April 21, 2025, as communicated in a letter

nearly identical to PFC’s Termination Letter, focusing on DEI initiatives without specificity as to

why IATP’s award was inconsistent with the new policies. McKee Van Slooten Decl., Ex. C,

Letter from Bruce Summers, Adm’r of USDA Agricultural Marketing Service, to Claudia

Aurand, Assoc. Dir. of IATP (Apr. 21, 2025) (“IATP Termination Letter”). The letter included

the same paragraph on general DEI policies as in the PFC Termination Letter, and the same

paragraph starting with “Termination.” in the PFC Termination Letter. Id. at 1. It contained, as

well, similar language about closing out expense requests and reports and an explanation of how

to pursue an administrative appeal. See id. at 2.

Plaintiffs allege that these terminations were only six of about 600 such USDA grant

terminations, based upon termination numbers touted on DOGE’s website. FAC ¶¶ 169-171;

Pls.’ Mem. at 16 (citing DOGE, Savings, https://doge.gov/savings (last visited Jul. 20, 2025)).

Plaintiffs provide an additional example of a termination of another one of AC’s grants, which

resembles the termination letters for PFC and IATP. See Pls.’ Notice of Factual Development at

16
1-2; id., Ex. A, Letter from Faulkner to Atwood (“Add’l AC Termination Letter”). 4 Ongoing

litigation in other courts further confirms that other USDA grants were similarly terminated. The

Pennsylvania Department of Agriculture has challenged the termination of its Local Food

Purchase Assistance program grant, which focuses on purchasing local foods from underserved

producers and small businesses and distributing it to underserved communities. See Shapiro v.

USDA, No. 25-cv-998, Complaint, ECF No. 1 (M.D. Penn. June 5, 2025). Pennsylvania, along

with several other states, also separately sued USDA and numerous other federal agencies to

challenge the defendants’ allegedly unlawful use of § 200.340(a)(4) to terminate federal funding.

See New Jersey v. U.S. Office of Mgmt. & Budget, No. 25-cv-11816, Complaint, ECF No. 1 (D.

Mass. June 25, 2025). A few months ago, researchers in the University of California System

also challenged termination of their USDA grants on that basis and were granted a preliminary

injunction. See Thakur v. Trump, -- F. Supp. 3d --, 2025 WL 1734471 (N.D. Cal. June 23,

2025).

B. Procedural Background

After receiving termination letters, plaintiffs took steps various steps as described next.

1. Administrative Appeals

As a first step, plaintiffs sought relief with USDA and the agency components issuing the

awards in an effort to restore their grants. OBC exchanged emails with USDA officials,

explaining that the termination was an error: Because of OBC’s cooperative structure, 100% of

their funds go to growers, not less than 65% as the OBC Termination Letter indicated. See Thiel

Decl., Ex. E, Emails re: basis for termination. Despite exchanging emails over the course of

4
Plaintiffs filed a notice of additional factual development on July 24, 2025, noting that a third AC grant had
been terminated pursuant to the same alleged policy and practice and explaining that other USDA grant recipients in
receipt of termination notices similar to plaintiffs wished to join the litigation if the requested broad relief
preliminarily enjoining the broader policy and practice of grant terminations were not granted.

17
April and May, USDA stuck to the termination decision. See id. In mid-May, OBC filed an

internal administrative appeal of the termination to the USDA National Appeals Division

(“NAD”), see id., Ex. F, eFiling of Appeal (May 16, 2025); FAC ¶ 147, but no action has been

taken by NAD. 5

Around the same time in May, each of the other plaintiffs also submitted administrative

appeals to components that issued their respective awards. See FAC ¶ 142 (USDN appealed to

USFS on May 1); id. ¶ 154 (AC appealed its first grant termination to NIFA on May 6); id. ¶ 159

(PFC appealed to NIFA on May 15); id. ¶ 164 (IATP appealed to AMS on May 21); McKee

VanSlooten Decl., Ex. D, Letter from Eric Bakies, Counsel for IATP, to Bruce Summers, Adm’r

of AMS (May 21, 2025). Such appeals to USDA components, as opposed to NAD, are

completely discretionary—effectively requests for reconsideration with no expectation of formal

process or additional review. See Rough Hr’g Tr. at 17:10-19.

None of the appeals have been resolved. Id. at 11:4-8. Plaintiffs explain, however, that

NAD has “issued decisions” in response to other grant appeals expressing “that the claims raised

in this case are ones of ‘general applicability’ that it is not permitted to review.” Pls.’ Mem. at

18; see also Rough Hr’g Tr. at 13:2-18 (plaintiffs’ counsel suggesting that NAD is avoiding

resolving what it considers to be questions of law). After that position was made clear, plaintiffs

decided to pursue relief in court, anticipating that no relief would be forthcoming from the

agency. See Pls.’ Reply in Supp. of Mot. for PI (“Pls.’ Reply”) at 20, ECF No. 24.

5
As noted, supra Part I.A.2, OBC also submitted a new application pursuant to the invitation in its
termination letter and has received no response. See Rough Hr’g Tr. at 16:13-23.

18
2. Initiation of Instant Lawsuit

USDN, OBC, and AC filed a complaint before this Court on June 5, 2025, and after being

joined by PFC and IATP, filed the operative first amended complaint on June 24, 2025, see FAC,

alleging an unlawful “policy, pattern, and practice” where defendants used essentially form

letters to terminate awards “based on termination grounds that were not clearly and

unambiguously allowed for under the awards,” “based on a claimed failure to effectuate agency

priorities, when those agency priorities were not specified in the awards,” and “based on the

Trump Administration’s new priorities that did not exist at the time of the awards.” FAC

¶ 135(a)-(c). Plaintiffs also allege that defendants’ terminations “[l]ack[ed] any evidence that the

awards failed to effectuate the priorities determined at the time of the awards” and “[l]ack[ed]

any reasoned explanation.” Id. ¶ 135(d)-(e). Defendants did not accuse recipients of “any

noncompliance” “with the terms or conditions of their awards” and did not “describe any specific

aspect of the awards that was found to be objectionable, let alone unlawful.” Id. ¶ 135(f)-(g).

They did not “provide any advance notice to awardees” or “offer technical assistance or even an

opportunity to address any alleged problems prior to termination.” Id. ¶ 135(h)-(i). 6

Plaintiffs separate their alleged legal violations into seven claims. Plaintiffs’ first two

claims are premised on the Due Process Clause. First, they allege that defendants violated

plaintiffs’ procedural due process rights under the Constitution because they did not provide

reasonable notice and an opportunity to be heard prior to their terminations. Id. ¶¶ 174-82

(Count One). Second, plaintiffs allege that defendants violated plaintiffs’ due process rights

6
These nine deficiencies are allegedly shared by plaintiffs’ six terminated grant awards, see FAC ¶¶ 141(a)-
(i) (USDN), 146(a)-(i) (OBC), 153(a)-(i) (AC), 158(a)-(i) (PFC), and 163(a)-(i) (IATP), and also allegedly
characterize the other terminations challenged as part of defendants’ policy and practice of unlawful terminations
that plaintiffs allege, see id. ¶ 135(a)-(i).

19
because their “application of 2 C.F.R. § 200.340(a)(4) is unconstitutionally vague and constitutes

an arbitrary exercise of authority” and because the form letters used for the terminations were

“based on priorities that were never previously identified for awardees.” Id. ¶¶ 183-90 (Count

Two).

Plaintiffs’ next assert violations of the APA, alleging, in the Third Count, that

defendants’ terminations of the grants were not in accordance with law—in particular, the federal

regulations consisting of OMB’s Uniform Guidance that USDA adopted as its own regulations, 2

C.F.R. § 400 et seq. See FAC ¶¶ 191-201 (Count Three). As support for this claim, plaintiffs

allege a litany of misapplication or misconstruction of regulations by defendants. For instance,

according to plaintiffs, the provision cited in their termination letters as the basis for termination,

2 C.F.R. § 200.340(a)(4), was not yet in effect and did not apply to the grants issued prior to

2024. See FAC ¶ 197(a). Further, defendants failed clearly and unambiguously to identify

grounds for termination in the conditions of the award, as § 200.340(a)(4) allegedly requires

since the awards only generally incorporated the provisions at 2 C.F.R. part 200. FAC ¶ 197(b).

Plaintiffs also allege that defendants terminated the grants based on new priorities rather than

those in effect at the time of the award and included in the award itself. Id. ¶ 197(c).

Defendants, moreover, failed to “identify or rely on any specific new evidence about the award

that demonstrates the award no longer effectuates the priorities it was initially intended to serve,”

and that defendants failed to “inform awardees prior to termination of any noncompliance with

the award’s requirements and offer technical assistance or an opportunity to address any issue,”

as set out in 2 C.F.R. §§ 200.339, 200.208(c). FAC ¶ 149(d)-(e).

Plaintiffs next allege, in the Fourth Count, that defendants violated the APA because their

“policy, pattern, and practice of issuing termination letters to hundreds of federal awardees” is

20
arbitrary and capricious for several reasons. Id. ¶¶ 202-08 (Count Four). For one, defendants

did not provide any reasonable explanation for their terminations—i.e., why the awards are

inconsistent with agency priorities or how the awards no longer effectuate USDA priorities

established at the time of the awards (which plaintiffs deem the proper standard by which to

judge awards). Id. ¶ 205(a), (c). Defendants also did not explain how their new priorities can be

reconciled with certain statutory mandates pursuant to which the funds were awarded. Id.

¶ 205(b). Plaintiffs also fault defendants for failing to consider how award terminations would

impact the statutory purposes of the awards, the reliance interests at stake, and the possibility that

the terminated awards may be consistent with new priorities. Id. ¶ 205(e)-(g). Plaintiffs lastly

say that the termination letters were arbitrary and capricious because they do not explain why

defendants changed their policy from their previous priorities. Id. ¶ 205(h).

Plaintiffs USDN and AC alone allege in the Fifth Count that defendants also violated the

APA because they did not act in accordance with the statutory provisions underlying their

awards. Id. ¶¶ 209-24 (Count Five). Regarding USDN’s grant, plaintiffs argue that Congress

specifically intended for awards under the Urban Community Forestry Assistance program, 16

U.S.C. § 2105, to contribute to mitigating global warming. See id. ¶ 211. Defendants’ expressed

reason, then, for terminating the award, i.e., because it related to climate change and

environmental justice and was no longer consistent with agency priorities, is inconsistent with

the statute. Id. ¶¶ 214-16. Regarding AC’s Grant #2, plaintiffs argue that Congress specifically

intended for funds under the Land Access Program to benefit socially disadvantaged farmers,

just as AC’s award did, and thus the articulated reason for the announced termination, i.e.,

because the grant is DEI-focused, is inconsistent with the statute. See id. ¶¶ 217-222.

21
Plaintiffs USDN and AC, again alone, allege in the Sixth Count a violation of separation

of powers under the Constitution for the same reasons cited in the Fifth Count, namely,

defendants’ termination of awards for reasons inconsistent with statutory mandates. Id. ¶¶ 225-

33 (Count Six). Lastly, plaintiff USDN, alone, alleges, in the Seventh Count, that USDA and

USFS acted ultra vires in seeking to terminate its award for reasons inconsistent with the statute

and having no statutory authority to do so. Id. ¶¶ 234-38.

As relief, plaintiffs seek a declaration that the terminations are unlawful, vacatur and

setting aside of the termination of plaintiffs’ awards, plus all other awards pursuant to the same

practice, an order to return plaintiffs’ awards to the status quo ante, and injunctions preventing

defendants from implementing the terminations or unlawfully re-terminating the awards. See id.

at 61 (“Requests for Relief”).

3. Pending Motions for Preliminary Injunctive Relief and Expedited
Discovery

On June 26, 2025, plaintiffs moved for a preliminary injunction and for expedited

discovery. See Pls.’ Mot for PI; Pls.’ Discovery Mot. Plaintiffs request that all grant

terminations pursuant to the challenged policy and practice be preliminarily vacated, that all

defendants be enjoined from giving the terminations any effect, that they be enjoined from

further terminating grants pursuant to the unlawful practice, and that defendants be required to

restore the status quo ante, reinstating all grants that were wrongfully terminated. See Pls.’

Proposed Order, ECF No. 14-7.

Plaintiffs also request limited discovery should the record not already be sufficient to

grant a preliminary injunction, given that there is “no published administrative record of

Defendants’ mass terminations, and any ad hoc administrative record offered by Defendants will

shed little, if any, light on the scope and specifics of the actual decision-making process and the

22
determinative factors behind Defendants’ actions.” Pls.’ Discovery Mot. at 1-2. Specifically,

plaintiffs request two interrogatories, providing basic information about the slew of grant

terminations: (1) “a description of the process by which Defendants identified and decided to

terminate or did terminate Plaintiffs’ Grants and any other grants for failing to effectuate or

otherwise align with USDA’s priorities” and (2) “a list of all grant recipients who received

termination notices containing language similar or equivalent to the termination letters received

by Plaintiffs, and the grants impacted by those terminations.” Id. at 5. Plaintiffs also seek two

“requests for production” for (1) “all documents regarding the creation, development, and

execution of Defendants’ policy, practice, or process” and (2) “all records Defendants rely on in

answering the two interrogatories.” Id. at 6.

Defendants oppose both motions for a preliminary injunction and expedited discovery,

Defs.’ Opp’n, and a hearing was held on these motions on August 6, 2025. 7

II. LEGAL STANDARD

A preliminary injunction is “an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.” Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). Relief

7
At the hearing, defendants asserted that some of plaintiffs’ grants were funded pursuant to programs or
appropriations that have since been eliminated by recent legislation but was unable to provide any details about
which grant funding had been so eliminated. See Rough Hr’g Tr. at 76:13-77:11. In response to the Court’s request,
defendants subsequently clarified that the funding of only one of plaintiffs’ six terminated grants was implicated by
recent legislation. Specifically, section 10201(3) of the One Big Beautiful Bill Act of 2025, Pub. L. No. 119-21
“rescinded all unobligated balances of amounts appropriated under Section 23003(a)(2) of the Inflation Reduction
Act,” pursuant to which only USDN’s now-terminated grant had been funded. Defs.’ Notice, ECF No. 27.
Plaintiffs explain that the rescission of unobligated funds does not impact USDN’s grant because the funds were
obligated prior to passage of Pub. L. No. 119-21. Pls.’ Response to Defs.’ Notice at 1, ECF No. 28. Indeed,
according to defendants’ own interpretation in the USFS Handbook, funds are considered obligated at the time an
agreement is fully executed. See id., Ex. A at 30, ECF No. 28-1. USDN’s grant was fully executed prior to the
rescission, so its funds are not affected by this legislation—nor are the funds for any of the other plaintiffs’
terminated grants at issue in this lawsuit.

23
is, as a result, “never awarded as of right.” Munaf v. Green, 553 U.S. 674, 689-90 (2008) (citing

Yakus v. United States, 321 U.S. 414, 440 (1944)).

To warrant preliminary injunctive relief, moving parties must demonstrate that: (1) they

are “likely to succeed on the merits”; (2) they are “likely to suffer irreparable harm in the

absence of preliminary relief”; (3) “the balance of equities tips in [their] favor; and (4) “an

injunction is in the public interest.” Winter, 555 U.S. at 20. When the federal government is the

opposing party, the final two factors “merge” into one, Nken v. Holder, 556 U.S. 418, 435

(2009), because “the government’s interest is the public interest,” Pursuing America’s Greatness

v. FEC, 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original).

Although a “sliding scale” approach has not been formally disavowed, the D.C. Circuit

has suggested that a “strong showing on one factor” cannot “make up for a weaker showing on

another.” Sherley, 644 F.3d at 392-93. Plaintiffs must establish “a likelihood of success on the

merits,” which “encompass[es] not only substantive theories but also establishment of

jurisdiction.” Obama v. Klayman, 800 F.3d 559, 565 (D.C. Cir. 2015) (quoting Munaf, 553 U.S.

at 690).

III. DISCUSSION

Contrary to defendants’ argument, this Court has subject matter jurisdiction over all of

plaintiffs’ claims because they do not fall within the scope of the Tucker Act conferring

exclusive jurisdiction to the Court of Federal Claims. Further, plaintiffs have made the requisite

showing that they are entitled to preliminary relief with respect to their six individual grant

terminations before this Court as to some but not all of their claims. Plaintiffs do not have

sufficient evidence at this point, however, to warrant relief on the broader policy and practice of

en masse terminations pursuant to § 200.340(a)(4) as alleged. Plaintiffs also are not entitled to

24
discovery at this stage, considering they do not meet the exceptions to the limitation on discovery

in APA cases.

A. Jurisdiction

At the outset, defendants argue, as the federal government has in countless other cases

regarding federal agency grant terminations, that plaintiffs’ constitutional, APA, and ultra vires

claims belong not here but before the Court of Federal Claims because they stem from contracts

plaintiffs had with the government. See Defs.’ Opp’n at 11-16. The Tucker Act provides the

exclusive “remedial scheme to challenge the termination of [p]laintiff[s’] grant[s],” according to

defendants, so this Court lacks subject matter jurisdiction over plaintiffs’ claims. Id. at 11, 16.

Plaintiffs counter that the Court has jurisdiction over all of their claims because, under extant

D.C. Circuit law, neither the source of the rights upon which plaintiffs base their claims nor the

relief sought is contractual in nature. See Pls.’ Mem. at 20. Jurisdiction is a “threshold” issue

and is therefore addressed before reviewing the merits of plaintiffs’ pending motions, with this

Court holding that jurisdiction may be properly exercised over plaintiffs’ claims. Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 93-94 (1998).

1. Current State of Law

The Tucker Act grants jurisdiction to the Court of Federal Claims to “render judgment

upon any claim against the United States founded . . . upon any express or implied contract with

the United States.” 28 U.S.C. § 1491(a)(1). That jurisdiction is “exclusive” for “breach of

contract claims against the United States seeking more than $10,000 in damages.” Crowley

Gov’t Servs., Inc. v. Gen. Servs. Admin., 38 F.4th 1099, 1106 (D.C. Cir. 2022) (quoting Hammer

v. United States, 989 F.3d 1, 2 (D.C. Cir. 2021)). As a result, the Act “impliedly forbids” such

claims “against the Government from being brought in district court” under other provisions,

such as the APA, which only provides for a waiver of sovereign immunity where no other statute

25
“grants consent to suit expressly.” Id. (first passage and third passages quoting Perry Cap. LLC

v. Mnuchin, 864 F.3d 591, 618-19 (D.C. Cir. 2017)).

a) D.C. Circuit Crowley/Megapulse Framework

The D.C. Circuit has long determined “whether a claim falls within the exclusive

jurisdiction of the Claims Court pursuant to the Tucker Act” by asking whether the “action

against the United States . . . is at its essence a contract claim.” Id. at 1106 (emphasis in

original) (quoting Megapulse, Inc. v. Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982)). That depends

on (1) “the source of the right upon which the plaintiff bases its claims” and (2) “the type of

relief sought (or appropriate).” Id. (quoting Megapulse, 672 F.2d at 968).

Regarding the source of the right, the mere involvement of a contract is not dispositive.

As the D.C. Circuit explained in Crowley, “[c]ontract issues may arise in various types of cases

where the action itself is not founded on a contract,” so “reference to or incorporation of a

contract” does not necessarily mean the Tucker Act applies. Id. at 1106-07 (alteration in

original) (quoting Megapulse, 672 F.2d at 968); see also id. at 1107 (“[T]he mere fact that a

court may have to rule on a contract issue does not, by triggering some mystical metamorphosis,

automatically transform an action . . . into one on the contract and deprive the court of

jurisdiction it might otherwise have.” (alteration in original) (quoting Megapulse, 672 F.2d at

968)). The Court must ascertain, regardless of how artfully pled, whether the action “sound[s]

genuinely in contract” or is “based on truly independent legal grounds.” Id. (quoting Megapulse,

672 F.2d at 969-70). Factors such as whether the plaintiffs’ asserted rights and the government’s

purported authority arise from a statute as opposed to a contract and “whether the plaintiff’s

rights ‘exist[] prior to and apart from rights created under the contract’” may be considered. Id.

26
(alteration in original) (quoting Spectrum Leasing Corp. v. United States, 764 F.2d 891, 894

(D.C. Cir. 1985)).

Regarding the type of relief sought, “[t]he crux of this inquiry . . . boils down to whether

the plaintiff effectively seeks to attain money damages in the suit” because that is the only relief

the Court of Federal Claims may award. Id. The Court of Federal Claims “does not have the

general equitable powers of a district court to grant prospective relief.” Bowen v. Massachusetts,

487 U.S. 879, 905 (1988). In many cases, the distinction between money damages and non-

monetary relief is clear. Where a plaintiff is seeking injunctive relief that may result in the

payment of money, however, the distinction is less obvious. The relief sought is not considered

monetary “merely because . . . success on the merits may obligate the United States to pay the

complainant.” Crowley, 38 F.4th at 1108 (quoting Kidwell v. Dep’t of Army, 56 F.2d 279, 284

(D.C. Cir. 1995). In other words, an order for “specific relief” (undoing a wrongful action), even

if resulting in the payment of money, is not the same as “money damages” (substituting for “that

which ought to have been done”). Bowen, 487 U.S. at 910. Yet, the non-monetary relief

requested by plaintiff must have “‘considerable value’ independent of any potential future for

monetary relief.” Crowley, 38 F.4th at 1107-08 (quoting Kidwell, 56 F.3d at 284).

Importantly, the D.C. Circuit has cautioned that this inquiry cannot lead to the perverse

outcome that neither the district court nor the Court of Federal Claims has jurisdiction. The

Tucker Act does not deprive the district court of jurisdiction where the Court of Federal Claims

would not be able to exercise its jurisdiction over the claim at issue. Tootle v. Sec’y of Navy, 446

F.3d 167, 176-77 (D.C. Cir. 2006) (“There cannot be exclusive jurisdiction under the Tucker Act

if there is no jurisdiction under the Tucker Act.”); see e.g., Crowley, 38 F.4th at 1109 (“Because

a plaintiff could not bring this type of . . . action in Claims Court in the first place, that Court

27
would not have exclusive jurisdiction of them.”). That means the district court must also

consider, apart from the two Megapulse factors, whether “the Court of Federal Claims can

exercise jurisdiction over the claim” in the first place because the claims involve agreements

qualifying as “contracts” under the Tucker Act. Am. Near E. Refugee Aid v. USAID, 703 F.

Supp. 3d 126, 132 (D.D.C. 2023).

b) Recent Supreme Court Stay Orders

The D.C. Circuit’s approach is the prevailing framework around the country for questions

about Tucker Act jurisdiction. See, e.g., California v. Dep’t of Educ., 132 F.4th 92, 96-97 (1st

Cir. 2025), aff’g order later stayed by Dep’t of Educ. v. California, 604 U.S. --, 145 S. Ct. 966

(2025); United Aeronautical Corp. v. U.S. Air Force, 80 F.4th 1017, 1026 (9th Cir. 2023);

Normandy Apartments, Ltd. v. Dep’t of Hous. & Urb. Dev., 554 F.3d 1290, 1299-1300 (10th Cir.

2009) (all applying the framework from Megapulse). Recently, two decisions applying this

framework have reached the Supreme Court on motions by the current Administration for an

emergency stay of injunction orders issued by district courts and not stayed by circuit appellate

courts. In one, the district court issued an order enjoining suspension of federal aid awards after

reasoning that plaintiffs’ claims under the APA were properly before the court. See AIDS

Vaccine Advoc. Coal. v. Dep’t of State, 766 F. Supp. 3d 74, 84-85 (D.D.C. 2025); see also AIDS

Vaccine Advoc. Coal., No. 25-5046, 2025 WL 621396, *1 (D.C. Cir. Feb. 26, 2025) (dismissing

an emergency appeal of the order and rejecting the request to stay the enforcement of the

temporary restraining order). The Supreme Court denied the agency’s application to vacate that

order, simply directing the district court to clarify its order to ensure compliance and feasibility

of any timelines. Dep’t of State v. AIDS Vaccine Advoc. Coal., 145 S. Ct. 753 (Mem.) (2025).

28
In the other, a District of Massachusetts court enjoined terminations of grants by the

Department of Education, determining that jurisdiction was appropriately exercised over APA

claims grounded in statutory rights and seeking equitable relief, and the First Circuit denied a

stay pending appeal. See California v. Dep’t of Educ., 769 F. Supp. 3d 72, 75-76 (D. Mass.

2025); stay pending appeal denied, 132 F.4th 92 (1st Cir. 2025). When the agency continued to

pursue an emergency stay, however, the Supreme Court granted the stay in a curt order,

indicating that the APA’s waiver of sovereign immunity did not apply to claims falling within

the scope of the Tucker Act. See Dep’t of Educ. v. California, 604 U.S. --, 145 S. Ct. 966

(2025). “[T]he Government is likely to succeed in showing the District Court lacked jurisdiction

to order the payment of money under the APA,” the Court wrote. Id. at 968. “[A]s we have

recognized, the APA's limited waiver of immunity does not extend to orders ‘to enforce a

contractual obligation to pay money’ along the lines of what the District Court ordered here. . . .

Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on ‘any

express or implied contract with the United States.’” Id. (first quoting Great-W. Life & Annuity

Ins. Co. v. Knudson, 534 U.S. 204, 212 (2002), and then quoting 28 U.S.C. § 1491(a)(1)).

Much confusion ensued as countless courts—in this district and others—attempted to

interpret that cursory explanation when applying the Megapulse inquiry in challenges to grant

terminations. See, e.g., Metro. Transp. Auth. v. Duffy, -- F. Supp. 3d -- , 2025 WL 1513369, *25

(S.D.N.Y. May 28, 2025) (distinguishing the Supreme Court’s Department of Education order to

hold that the court had jurisdiction over APA claims); Vera Inst. of Just. v. DOJ, No. 25-cv-1643

(APM), 2025 WL 1865160, *7-11 (D.D.C. July 7, 2025) (holding that Department of Education

“foreclose[d] the exercise of jurisdiction over Plaintiffs’ arbitrary-and-capricious claim,” but not

of other claims), appeal filed, No. 25-5248 (D.C. Cir. July 10, 2025); Green & Healthy Home

29
Initiatives, Inc. v. EPA, -- F. Supp. 3d -- , 2025 WL 1697463, *13-14 (D. Md. June 17, 2025)

(distinguishing the Supreme Court’s Department of Education order and collecting cases

applying the Megapulse test to grant termination challenges); infra Part III.A.2(c) (collecting

cases).

The D.C. Circuit has provided some guidance in interpreting the Court’s stay ruling in

Department of Education, indicating that the “stay order” did not “change the landscape”

established by Megapulse. Widakuswara v. Lake (No. II), No. 25-5144, 2025 WL 1288817, *13

(D.C. Cir. May 3, 2025) (Pillard, J., dissenting). The district court in Widakuswara had granted a

preliminary injunction requiring the United States Agency for Global Media to, among other

things, restore grants to network stations Radio Free Asia and Middle East Broadcasting

Network that were unlawfully terminated. See Widakuswara v. Lake (No. I), -- F. Supp. 3d --,

2025 WL 1166400, *18 (D.D.C. Apr. 22, 2025). The government sought an emergency stay

order from the D.C. Circuit, which the initial panel granted over a dissent from Judge Pillard.

See Widakuswara No. II, 2025 WL 1288817, at *1. The panel majority cited the Supreme

Court’s limited “reasoning” in the Department of Education order to find that decision “controls

this case.” Id. at *3. Judge Pillard explained, to the contrary, that the plaintiffs’ APA, statutory,

and constitutional claims were not “in essence contractual” under Crowley and Megapulse, and

the Supreme Court’s stay order did not change the outcome. See id. at *11-14 (Pillard, J.,

dissenting). The Circuit took the panel’s stay order en banc, vacated the panel majority’s order,

and explicitly adopted Judge Pillard’s reasoning. Widakuswara v. Lake (No. III), No. 25-5144,

2025 WL 1521355, at *1 (D.C. Cir. May 28, 2025) (en banc). In light of that guidance,

especially given the paucity of clear reasoning to apply from Department of Education, district

courts have continued to apply Megapulse and Crowley while addressing the Supreme Court’s

30
stay with respect to the particular facts in their cases. See, e.g., S. Educ. Found. v. Dep’t of

Educ., -- F. Supp. 3d--, 2025 WL 1453047, at *8-9 (D.D.C. May 21, 2025) (distinguishing the

Supreme Court’s stay order and further noting that it “does not displace governing law that

guides this Court’s assessment of whether [plaintiff]’s claims are essentially contract claims”);

La. Delta Serv. Corps v. Corp. for Nat’l & Cmty. Serv., No. 25-cv-378, 2025 WL 1787429, at

*22 (M.D. La. June 27, 2025) (applying existing law governing the Tucker Act inquiry,

including Bowen, 487 U.S. at 893, because the Supreme Court did not “overrule” that case, nor

did the Court “provide any dicta” distinguishing it).

2. Analysis

Taking that approach here, the Court addresses the nature of the rights asserted by

plaintiffs and the nature of the relief sought. See Megapulse, 672 F. 2d at 968. The grants at

issue here would not be considered contracts and therefore would not be subject to the Court of

Federal Claims’ jurisdiction. Regardless, plaintiffs are not seeking relief arising directly from

the grants themselves and are requesting relief that is decidedly not contractual in nature.

Plaintiffs’ claims are properly before this Court.

a) Rights Asserted: Constitutional and Statutory

The source of plaintiffs’ claims is not contractual in nature for two reasons: (1) plaintiffs’

grants are not contracts under applicable jurisprudence in the Court of Federal Claims, meaning

that court would not have jurisdiction over these claims, and (2) plaintiffs’ claims arise out of

rights protected not by contracts but rather by statutes and the Constitution.

First, the “Court of Federal Claims” is granted jurisdiction by the Tucker Act over only

“contract suits against the United States,” and because plaintiffs’ grants do not fall within the

Federal Circuit’s jurisprudence defining “contracts” with the United States, this Court cannot be

deprived of jurisdiction by the Tucker Act. Nat’l Leased Hous. Ass’n v. United States, 105 F.3d
31
1423, 1427 (Fed. Cir. 1997). A contract with the United States must “contain[] the four required

elements of offer, acceptance, consideration, and proper government authority.” San Antonio

Hous. Auth. v. United States, 143 Fed. Cl. 425, 463 (2019); see also Trauma Serv. Grp. v. United

States, 104 F.3d 1321, 1326 (Fed. Cir. 1997) (“[A]ny agreement can be a contract within the

meaning of the Tucker Act, provided that it meets the requirements for a contract with the

Government, specifically: mutual intent to contract including an offer and acceptance,

consideration, and a Government representative who had actual authority to bind the

Government.”). With respect to consideration, “[i]n the context of government contracts,”

consideration “must render a benefit to the government, and not merely a detriment to the

contractor.” St. Bernard Parish Gov’t v. United States, 134 Fed. Cl. 730, 735 (2017) (quoting

Metzger, Shadyac & Schwarz v. United States, 12 Ct. Cl. 602, 605 (1987)). “The crucial

distinction is between an incidental and a direct benefit.” Id. at 736. Indirectly benefitting the

government by “advanc[ing] the agency’s overall mission” is not sufficient consideration.

Hymas v. United States, 810 F.3d 1312, 1328 (Fed. Cir. 2016); see also Penn. Dep’t of Pub.

Welfare v. United States, 48 Fed. Cl. 785, 791 (2001) (“By funding and regulating programs

designed for the public good, the U.S. is acting in its role as sovereign and the moneys promised

are gifts or gratuities which do not establish any contractual obligation, express or implied, on

the part of the United States.” (quoting Marshall N. Dana Constr., Inc. v. United States, 229 Ct.

Cl. 862, 864 (1982))). Rather, the kinds of contracts subject to Court of Federal Claims

jurisdiction are those that allow the government to “obtain a service” or property. Hymas, 810

F.3d at 1328-29.

Defendants make the conclusory assertion that plaintiffs’ grant agreements “are

prototypical contracts” because “they set out obligations that Plaintiffs must accept and fulfill in

32
exchange for consideration from the government.” Defs.’ Opp’n at 13 (“[T]he mutual intent to

contract, along with other terms outlined in the grant agreement, constitute government contracts

for Tucker Act purposes.”). Plaintiffs respond that “grant agreements are not contracts,”

comparing them to the “cooperative agreements” this Court has previously differentiated from

contracts subject to the Court of Federal Claims jurisdiction because they lacked consideration.

Pls.’ Reply at 2, 4 (cleaned up) (citing Am. Ctr. for Int’l Lab. Solidarity v. Chavez-DeRemer

(“ACILS”), -- F. Supp. 3d --, 2025 WL 1795090, *14-18 (D.D.C. June 30, 2025)).

Plaintiffs are correct that not all grant agreements are contracts, and those at issue here

lack consideration to constitute contracts for Court of Federal Claims jurisdiction. As an initial

matter, although the label on the agreement is not dispositive, see Penn. Dep’t of Pub. Welfare,

48 Fed. Cl. at 790 (“Grant related agreements have been held to be contracts within Tucker Act

jurisdiction when all the requisite elements of a contract were present.”), “how the government

agency classifies or denominates an agreement has probative value in assessing the sufficiency

of the consideration the agency expects.” ACILS, 2025 WL 1795090, at *14. Federal law

instructs agencies to use “grant agreement[s] as the legal instrument reflecting a relationship

between the United States Government and . . . other recipient[s] when—(1) the principal

purpose of the relationship is to transfer a thing of value to the . . . recipient to carry out a public

purpose of support or stimulation authorized by a law of the United States instead of acquiring

. . . property or services for the direct benefit or use of the United States Government; and (2)

substantial involvement is not expected” in carrying out that purpose. 31 U.S.C. § 6304.

Cooperative agreements are defined similarly, but as to the second part of the definition,

“substantial involvement is expected between the executive agency and the . . . recipient” for

such arrangements. Id. § 6305. By contrast, “procurement contract[s]” reflect acquisition of

33
“property or services for the direct benefit or use of the United States Government.” Id. § 6303

(emphasis added). Federal regulations define the different forms of agreements similarly to the

statute. See 2 C.F.R. § 200.1. In particular, by regulation, “contract” is defined as a

“procurement transaction[] under a Federal award.” Id.

Here, none of the six agreements currently in the record are labeled as “contracts.” Three

are labeled as “award[s],” see Heltman-Weiss Decl., Ex. C, PFC Award; McKee VanSlooten

Decl., Ex. A., IATP Award; Atwood Decl., Ex. C, AC Grant #1, suggesting a kind of gratuity

rather than agreement of mutual obligation, see Pennsylvania Department of Public Welfare, 48

Fed. Cl. at 791. Two are labeled as “grant and agreement award[s],” Thiel Decl., Ex. A, OBC

Grant; Atwood Decl., Ex. D, AC Grant # 2, which by statutory definition, are different from

contracts, see 31 U.S.C. § 6304, and one is labeled as a “cooperative agreement,” Brown Decl.,

Ex. C, USDN Cooperative Agreement, which also differs from contracts under the statute and in

the caselaw, see 31 U.S.C. § 6305; Hymas, 810 F.3d at 1329-30 (holding that a properly

construed “cooperative agreement” is “not subject to Tucker Act review”); see also Am. Near

East Refugee Aid, 703 F. Supp. 3d at 134 (holding that the district court had jurisdiction over a

claim about termination of cooperative agreements because they lacked consideration to be

considered contracts for purposes of Tucker Act review); ACILS, 2025 WL 1795090, at *18

(same).

The labels here indeed reflect the contents of these awards, which lack the kind of

consideration sufficient to constitute a contract before the Court of Federal Claims. Aside from

referring vaguely to “obligations,” defendants do not point to any consideration at all—let alone

any direct benefit the government would receive. See Defs.’ Opp’n at 13. While the awards set

out specific expectations and requirements—for instance, the award recipient must provide

34
performance reports and comply with other reporting obligations, audit requirements,

prohibitions on using funds in ways that contradict the law, restrictions on use of funds for

certain non-essential items, procurement standards, and so forth—those obligations on the

recipients reflect conditions on the awards and do not constitute “direct benefit[s]” to the

government. St. Bernard Parish, 134 Fed. Cl. at 735; see, e.g., USDN Cooperative Agreement at

6-15 (establishing requirements for financial status reporting, program performance, and

purchase of equipment under the award, and prohibitions on trafficking in persons, hiring

ineligible workers, using drugs in the workplace, etc.); OBC Grant at 4 (requiring compliance

with “the applicable version of the General Terms and Conditions”); AC Grant #1 at 1 (requiring

compliance with “Research Terms and Conditions” and “USDA/NIFA Agency-Specific Terms

and Conditions,” as well as progress reporting); AC Grant #2, Attachment “General Terms and

Conditions for Non-ezFedGrants” (describing “unallowable costs” such as those above the

amount authorized or “souvenirs,” prior approval requirements, financial reporting and

performance monitoring requirements, and preferences for purchasing materials for construction

from American companies); PFC Award at 1 (setting out very minimal obligations); IATP

Award at 5-6 (requiring only adherence to civil rights law, paperwork requirements, and public

announcement restrictions). The benefit that these agreements provide to the government is

advancing certain policy priorities, statutory goals, and the mission of the USDA. See Rough

Hr’g Tr. at 79:21-80:5 (defendants’ counsel at the hearing arguing that the direct benefit is “these

nonprofits [] implementing a government program” or aim set out by Congress). That is not

consideration according to the Court of Federal Claims. See Hymas, 810 F.3d at 1328.

At least one other Judge on this Court considering similar claims reached a different

conclusion that grants need not offer “direct, tangible” benefit to the government to be contracts

35
before the Court of Federal Claims, Vera Institute, 2025 WL 1865160, at *10, in reliance on

Columbus Regional Hospital v. United States, 990 F.3d 1330 (Fed. Cir. 2021), where the Federal

Circuit “held that there was consideration in a disaster grant agreement, where the grant recipient

‘agreed to comply with an array of requirements attached to the receipt, use, and distribution of

the grant money,’” Vera Institute, 2025 WL 1865160, at *10 (quoting Columbus Reg’l, 990 F.3d

at 1340). Columbus Regional does not, however, suggest that mere conditions for compliance by

a recipient of a grant award always suffice as consideration. That case involved an agreement

between the state of Indiana and FEMA for disaster assistance. See 990 F.3d at 1335-36. After

the Court of Federal Claims had dismissed the case for lack of jurisdiction under the Tucker Act,

the Federal Circuit disagreed, holding that the grant had all four necessary elements to qualify as

a contract. Id. at 1339-41. The grant especially evinced an intent to contract, considering FEMA

offered the grant pursuant to a regulation that explicitly “impos[es] binding obligations on

FEMA” as well as the recipients, “in the form of conditions for assistance which are legally

enforceable.” Id. at 1339 (quoting 44 C.F.R. § 206.44(a)).

With respect to consideration, the court cited the grant’s imposition of obligations on

Indiana, not as traditional conditions of compliance for receiving federal funds, but as

obligations conferring a direct benefit to FEMA. See id. at 1340. FEMA is statutorily required

to provide disaster assistance and relief and may do that in part by making grants to states. See

42 U.S.C. § 5131(c); 44 C.F.R. § 206.200(b)(1) (“The Stafford Act requires that we deliver

eligible assistance as quickly and efficiently as possible consistent with Federal laws and

regulations.”). States receiving FEMA public assistance grants are therefore considered to

“administer federal programs” in providing disaster assistance “under their own procedures.” 44

C.F.R. § 206.200(b)(2). States are essentially delegated a portion of FEMA’s duties to distribute

36
disaster assistance to regions and localities—acting as “the grant administrator for all funds

provided.” Id. § 206.202(b). Indiana, therefore, took on specific responsibilities to, for instance

“provide ‘technical advice and assistance to eligible subrecipients’ and to ensure that ‘all

potential applicants [we]re aware of available public assistance.’” Columbus Reg’l, 990 F.3d at

1340 (quoting 44 C.F.R. § 206.202(b)(1), (b)(3)). As the court described this arrangement:

“Indiana agreed to act on FEMA’s behalf to,” for example, “recover any funds that were

dispensed ‘through error, misrepresentation, or fraud.’” Columbus Reg’l, 990 F.3d at 1340

(emphasis added) (quoting the record).

In other words, pursuant to the public assistance grant agreement, the state was

performing services FEMA would otherwise have to perform in distributing, monitoring, and

vetting disaster aid, thus conferring a direct benefit distinct from generally advancing FEMA’s

mission. That distinguishes Columbus Regional from this case where plaintiffs do not perform

any services directly on the government’s behalf that the government agency would otherwise be

obliged to perform. Plaintiffs are not performing specific USDA functions or working with

beneficiaries to whom USDA has an independent obligation, but rather developing their own,

unique projects to pursue general statutory aims. See Penn. Dep’t of Pub. Welfare, 48 Fed. Cl. at

790-91 (distinguishing a Federal Disaster Act award “involv[ing] a statutory provision expressly

authorizing a representative to contractually bind the United States,” which was held to be a

contract, from the agreement at issue, where “no statute authoriz[ed] HHS to enter into a

contract” and the plan “appear[ed] to implement a public benefit program that has the purpose of

assisting the States in providing welfare services to children”).

The Supreme Court’s order in Department of Education sheds no light on the distinction

between a grant and a contract for Tucker Act jurisdiction. See 145 S. Ct. 966. Though the

37
agreements were not even in the record at the time of the district court’s order, with the

exception of one “notification of award” as an exhibit, the parties in that case did not raise the

issue challenging whether the grants were contracts and the lower courts did not consider it. See

California v. Dep’t of Educ., 769 F. Supp. 3d 72 (D. Mass. 2025) (district court order on March

10, 2025); id., Compl., Attachment B, No. 25-cv-10548, ECF No. 1-2; California v. Dep’t of

Educ., 132 F.4th 92 (1st Cir. 2025) (denying stay pending appeal); Opposition to Application,

Dep’t of Educ. v. California, No. 24A910, 2025 WL 963588 (U.S.); Reply in Supp. of

Application, id., 2025 WL 1139974, at *7 (Mar. 2025) (government pointing out that

“[r]espondents d[id] not dispute that th[e] grants are contracts for jurisdictional purposes”). As a

result, the Supreme Court’s jurisdictional determination seemingly assumed that the grants in

that case were subject to Tucker Act jurisdiction, without considering whether different grant

agreements may not be contracts falling within the Court of Federal Claims’ exclusive

jurisdiction.

Even if the agreements here were contracts under the Tucker Act, the source of plaintiffs’

claims is not the particular agreements but rather the rights conferred by the APA and the

Constitution. See Crowley, 38 F.4th at 1106. Plaintiffs have alleged that defendants have

violated the due process clause, acted contrary to federal regulations and statutes in violation of

the APA, acted arbitrarily and capriciously contrary to the APA, and violated the separation of

powers structure of the Constitution. See supra Part I.B.2. Although plaintiffs are challenging

the termination of their grant agreements—so in that broad sense, their claims arise from factual

circumstances involving the agreements—the rights they assert are not protected by the

agreements at all, but rather by statutes, regulations, the Constitution, and the APA. See

Crowley, 38 F.4th at 1108 (noting that the plaintiff did “not seek to enforce any duty imposed

38
upon” the defendant by the contract at issue (quoting Perry Cap., 846 F.3d at 619)); La. Delta

Serv. Corps, 2025 WL 1787429, at *19 (“The rights [plaintiff] asserts—to a notice and hearing

prior to termination, to the right to appeal termination, to termination only for the reasons stated

in . . . Uniform Guidance regulations—are rights that arise not from the alleged contract (that is,

the terms and conditions of the grant), but from statute and regulations.”). For this reason, “even

proving a breach of the” agreements “would not entitle plaintiffs to relief on their claims.”

ACILS, 2025 WL 1795090, at *12. Where “a plaintiff’s claim depends on interpretations of

statutes and regulations rather than the terms of an agreement negotiated by the parties, the claim

is not in essence contractual.” Widakuswara No. II, 2025 WL 1288817, at *12 (Pillard, J.,

dissenting).

To be sure, plaintiffs’ Third Count, alleging a violation of the APA because the

terminations did not comply with Uniform Guidance provisions, would require the Court to

reference the terms of the agreement because § 200.340(a)(4) provides for termination “pursuant

to the terms and conditions of the Federal award . . . if an award no longer effectuates the

program goals or agency priorities” (emphasis added). See FAC ¶ 197. The D.C. Circuit has

“explicitly rejected,” however, “the ‘broad’ notion ‘that any case requiring some reference to or

incorporation of a contract is necessarily on the contract and therefore directly within the Tucker

Act.’” Crowley, 38 F.4th at 1107 (quoting Megapulse, 672 F.2d at 967-68). As Megapulse

noted, “[c]ontract issues may arise in various types of cases where the action itself is not founded

on a contract.” Id. at 1106-07 (alteration in original) (quoting Megapulse, 672 F.2d at 968). In

short, it “would be quite extraordinary to consider [p]laintiffs’ claims to sound in breach of

contract when they do not at all depend on whether the terms of particular awards were

breached—they instead challenge whether the agency action here was unlawful, irrespective of

39
any breach.” AIDS Vaccine Advoc. Coal. v. Dep’t of State, 770 F. Supp. 3d 121, 137 (D.D.C.

2025), vacated and remanded on other grounds, Global Health Council v. Trump, -- F. 4th --,

2025 WL 2326021 (D.C. Cir. Aug. 13, 2025); see also Md. Dep't of Hum. Res. v. Dep’t of Health

& Hum. Servs., 763 F.2d 1441, 1449 (D.C. Cir. 1985) (Bork, J.) (holding that, where “claims

arise under a federal grant program and turn on the interpretation of statutes and regulations

rather than on the interpretation of an agreement negotiated by the parties,” the claims “are not

contract claims for Tucker Act purposes”). 8

b) Relief Sought: Injunctive

As to the second inquiry under the D.C. Circuit’s Megapulse framework, the relief

plaintiffs seek here is not contractual in nature. Plaintiffs seek vacatur of the terminations

effectuated by defendants’ allegedly unlawful policy or practice, an injunction against further

terminations pursuant to that practice, and further injunctive relief that defendants treat the

agreements as if they had never been terminated. See Proposed Order. Those remedies are ones

the Court of Federal Claims, which awards “money judgment[s] against the United States,”

cannot afford. See Widakuswara No. II, 2025 WL 1288817, at *13 (Pillard, J., dissenting)

(alteration in original) (quoting Bowen, 487 U.S. at 905); see also id. (“The type of relief

plaintiffs seek is unavailable in the Court of Federal Claims, which ‘has no power to grant

equitable relief.’” (quoting Bowen, 487 U.S. 905)). They are distinct in both form and substance

from the essential contractual remedy of money damages. Crowley, 38 F.4th at 1107.

8
Other district courts considering claims nearly identical to Count Three—i.e., premised on § 200.340(a)(4),
which contemplates a reference to specific terms and conditions—have likewise found they had jurisdiction over the
claim. See, e.g., La. Delta Serv. Corps, 2025 WL 1787429, at *5, 20-22 (describing plaintiffs’ claim that
termination under § 200.340(a)(4) was invalid because that basis for termination—“no longer effectuat[ing] the
program goals or agency priorities”—was not clearly specified in the award’s terms and conditions); Green &
Healthy Home Initiatives, 2025 WL 1697463, at *10, 15 (same).

40
The Supreme Court’s opinion in Bowen v. Massachusetts, 487 U.S. 879 (1988), makes

that distinction clear. The Court there explained that money damages “refers to a sum of money

used as compensatory relief.” Id. at 895 (quoting Md. Dep’t of Human Res., 763 F.2d at 1446).

Specific remedies in the form of equitable relief “are not substitute remedies at all, but attempt to

give the plaintiff the very thing to which he was entitled.” Id. (quoting Md. Dep’t of Human

Res., 763 F.2d at 1446). Plaintiffs here seek vacatur of the termination of their grants and

restoration of those grants not to compensate for the harm caused by the unlawful termination of

their grants but rather to return to their positions before the unlawful actions and to “clarify

future obligations” as to their rights, protecting from future harm. Me. Cmty. Health Options v.

United States, 590 U.S. 296, 298 (2020). Such relief cannot be characterized as monetary

damages. Moreover, the certainty provided by plaintiffs’ requested equitable relief provides

value independent of any funds paid—the ability to conduct its programs without fear of

arbitrary and abrupt termination. See Crowley, 38 F.4th at 1111 (describing the benefits of

equitable relief requested there including “the certainty of knowing whether [certain procedures]

apply” and “an answer to the question whether [the government] has authority” to take certain

challenged actions).

Defendants argue that plaintiffs are disingenuously “recast[ing] [their] breach of contract

claim as a claim for equitable relief . . . when the requested relief is the same: reopening the

spigot of grant disbursements.” Defs.’ Opp’n at 14. Yet, as the Supreme Court has plainly

stated, the “fact that a judicial remedy may require one party to pay money to another is not a

sufficient reason to characterize the relief as ‘money damages.’” Bowen, 487 U.S. at 893.

Plaintiffs here “do[] not ask the district court to issue an order compelling [USDA] to pay or

award any monetary relief whatsoever.” Crowley, 38 F.4th at 1111. In short, because “the Court

41
of Federal Claims ‘does not have the general equitable powers of a district court to grant

prospective relief’” as requested, this case must “belong[] in district court.” Me. Cmty Health,

590 U.S. at 327 (quoting Bowen, 487 U.S. at 905).

c) Defendants’ Additional Counter Arguments

Defendants offer two final points to challenge this conclusion that subject matter

jurisdiction may be exercised over plaintiffs’ claims. First, defendants argue that plaintiffs’

artful pleading cannot manufacture jurisdiction in this Court. See Defs.’ Opp’n at 15 (“Under

Plaintiffs’ reasoning, all contract-related actions or terminations could be pleaded as statutory or

constitutional claims—not contract claims—and proceed in district court.”). Still, defendants’

“jurisdictional challenge” must be analyzed “in light of the . . . claims the [plaintiffs] actually

bring[].” De Csepel v. Republic of Hungary, 714 F.3d 591, 598 (D.C. Cir. 2013). Defendants

express concern about creating an “end-run around the exclusive jurisdiction of the Court of

Federal Claims,” Defs.’ Opp’n at 16, but their concern that all plaintiffs will simply start to plead

their contract claims as constitutional violations to get into district court is unfounded: Where

parties do have a right grounded in contract, they will likely have a more secure path to relief

bringing that claim in plain contract form before the specialized court. This concern is especially

misplaced here, where plaintiffs do not have a contract with the government at all. See supra

Part III.A.2(a).

Second, defendants further point to Department of Education as clearly “dispell[ing]”

“[a]ny lingering doubts as to whether this Court has jurisdiction.” Defs.’ Opp’n at 13. As

already explained, however, the Supreme Court’s order does not resolve the dispute here because

the issue was simply not addressed as to whether the specific agreements qualified as contracts

for which the Tucker Act grants the Court of Federal Claims jurisdiction. See supra Part

42
III.A.2(a). The Department of Education order is not controlling here for at least two additional

reasons. The Supreme Court’s order is not binding precedent purporting to overturn Bowen or

other existing law but merely a “stay . . . pending a ruling on the merits.” Merrill v. Milligan,

142 S. Ct. 879, 879 (2022) (Kavanaugh, J., concurring) (emphasis in original) (“The stay order

does not make or signal any change to voting rights law. The stay order is not a ruling on the

merits, but instead simply stays the District Court's injunction pending a ruling on the merits.”);

Bosse v. Oklahoma, 580 U.S. 1, 3 (2016) (per curiam) (“[I]t is [the Supreme] Court’s prerogative

alone to overrule one of its precedents.” (first alteration in original) (quoting United States v.

Hatter, 532 U.S. 557, 567 (2001))). The order, by contrast, cited Bowen. See Dep’t of Educ.,

145 S. Ct. at 968. In the absence of a clear abrogation of that law or clear reasoning

distinguishing it, this Court is left to apply existing law from Bowen and Megapulse. See La.

Delta Serv. Corps, 2025 WL 1787429 (“Under these circumstances, the Court remains bound by

the precedent set by Bowen.”); see also, e.g., S. Educ. Found., 2025 WL 1453047, at *9 (“[T]he

Supreme Court’s stay order in Department of Education does not displace governing law that

guides this Court’s assessment of whether [plaintiffs’] claims are essentially contract claims.”).

Additionally, the Supreme Court was faced with a finding made below that “the terms

and conditions of each individual grant award [we]re at issue.” California v. Dep’t of Educ., 132

F.4th at 96-97. The reliance on specific terms and conditions in the grant awards may have

resulted in the Supreme Court’s understanding that the district court’s order “was essentially one

to ‘enforce a contractual obligation to pay money.’” ACILS, 2025 WL 1795090, at *19 (quoting

Dep’t of Educ., 145 S. Ct. at 968); see also Am. Pub. Health Ass’n v. Nat’l Insts. of Health, --

F.4th--, 2025 WL 2017106, at *7 (1st Cir. July 18, 2025) (“[T]he Supreme Court construed the

district court as having ordered ‘the Government to pay out past-due grant obligations.’”

43
(quoting Dep’t of Educ., 145 S. Ct. at 968)), application for stay filed with Supreme Court (July

24, 2025). Here, the agreements do not give rise to any contractual obligations against the

government, and plaintiffs do not seek to have any such obligation enforced. The terms and

conditions of the individual grant awards are not relevant to any of plaintiffs’ claims—except in

a limited way in Count Three, where the terms of the awards are not “at issue” but merely

incorporated by reference. 9

The conclusion that this Court has jurisdiction over these claims is consistent with that

reached by countless other courts considering similar claims. See, e.g., Am. Pub. Health Ass’n,

2025 WL 2017106, at *7-8 (First Circuit denying stay of preliminary injunction declaring

unlawful and setting aside under the APA an agency policy resulting in arbitrary and capricious

grant terminations, and distinguishing the stay order in Department of Education); Nat’l Fair

Hous. All. v. Dep’t of Hous. & Urb. Dev., No. 25-cv-1965 (SLS), 2025 WL 2105567, at *8-9

(D.D.C. July 28, 2025) (holding that an APA unreasonable delay claim did not fall within the

Tucker Act’s exclusive jurisdiction); Porwancher v. Nat’l Endowment for the Humanities, -- F.

Supp. 3d --, 2025 WL 2097740, at *4 (D.D.C. 2025) (holding the court had jurisdiction over an

APA claim based on the agency not following its regulations in terminating a grant); Elev8

Baltimore, Inc. v. Corp. for Nat’l & Cmty. Serv., No. 25-cv-1458, 2025 WL 1865971, at *13-14

(D. Md. July 7, 2025) (finding that plaintiffs’ APA and ultra vires claims “are for forward-facing

equitable relief founded upon constitutional and statutory violations”—so they were not subject

9
As plaintiffs also point out, the Supreme Court did not consider in Department of Education any
nonstatutory claims, including those brought under the Constitution, and thus the order cannot be read to suggest
that such nonstatutory claims may not proceed in district court. Pls.’ Mem. at 22. “In fact, while the Supreme
Court’s order revolved around lack of sovereign immunity waiver for the APA claims, constitutional and other
nonstatutory claims need not rely on any waiver of sovereign immunity because where an ‘officer is not doing the
business which the sovereign has empowered him to do’” such immunity did not attach in the first place. Id.
(quoting Chamber of Com. v. Reich, 74 F.3d 1322, 1329 (D.C. Cir. 1996)).

44
to the Tucker Act, and collecting cases coming to the same conclusion); Amica Ctr. for

Immigrant Rights v. DOJ, No. 25-cv-298 (RDM), 2025 WL 1852762, at *1, 13-15 (D.D.C. July

6, 2025) (holding the court had jurisdiction over APA, constitutional, and nonstatutory ultra

vires claims brought by subcontractors whose contracts to provide legal services to individuals in

immigration proceedings were terminated), appeal filed, No. 25-5254 (D.C. Cir. July 16, 2025);

La. Delta Serv. Corps, 2025 WL 1787429, at *9, 16-22 (holding that the Tucker Act did not

deprive the district court of jurisdiction over similar APA claims); Thakur, 2025 WL 1734471, at

*18-21 (holding that the court had jurisdiction over very similar APA and constitutional claims

challenging termination of USDA grants), appeal filed, No. 25-4249 (9th Cir. June 23, 2025);

Green & Healthy Home Initiatives, 2025 WL 1697463, at *12-15 (determining that the Tucker

Act did not abrogate the court’s jurisdiction over similar APA and constitutional claims

regarding termination of EPA grants, and collecting cases); Maryland v. Corp. for Nat’l & Cmty.

Serv., -- F. Supp. 3d --, 2025 WL 1585051, at *22-28 (D. Md. June 5, 2025) (holding that APA

claims challenging the termination of Americorps grants are not subject to exclusive jurisdiction

of the Court of Federal Claims); Metro. Transp. Auth., 2025 WL 1513369, at *25-26 (holding

that the terminated grant in question lacked consideration and thus was not a contract under the

Tucker Act and that the APA claims were not fundamentally contractual); S. Educ. Found., 2025

WL 1453047, at *8-11 (holding that similar APA and constitutional claims were not subject to

the Tucker Act), appeal filed, No. 25-5256 (D.C. Cir. July 21, 2025); Climate United Fund v.

Citibank N.A., 778 F. Supp. 3d 90, 107-11 (D.D.C. 2025) (concluding the Court had jurisdiction

over APA, constitutional, and statutory claims challenging termination of nonprofit clean

technology investment banks), modified by, motion to amend judgment granted by 2025 WL

1569275 (D.D.C. Apr. 19, 2025); Woonasquatucket River Watershed Council v. USDA, 778 F.

45
Supp. 3d 440, 464-66 (D.R.I. 2025) (holding the court had jurisdiction over APA challenges to

the termination of grants by USDA and other agencies), appeal filed, No. 25-1428 (1st Cir. May

1, 2025); Maine v. USDA, 778 F. Supp. 3d 200, 224-26 (D. Me. 2025) (granting a temporary

restraining order barring defendants from freezing or terminating state funds and concluding that

these claims were properly reviewed under the APA, applying Bowen); Massachusetts v. Nat’l

Insts. of Health, 770 F. Supp. 3d 277, 291-95 (D. Mass. 2025) (holding the court had jurisdiction

over similar APA challenges to grant terminations), appeal filed sub nom. Ass’n of Am. Med.

Coll. v. Nat’l Insts. of Health, No. 25-1344 (1st Cir. April 9, 2025); see also Am. Bar Ass’n v.

Dep’t of Just., -- F. Supp. 3d -- , 2025 WL 1388891, at *5-6 (D.D.C. May 14, 2025) (holding the

Court had jurisdiction over a First Amendment constitutional claim challenging grant

terminations); Women in Trades v. Trump, 778 F. supp. 3d 959, 980-83 (N.D. Ill. Apr. 14, 2025)

(“Of course, [plaintiff’s] claims implicate its grant agreements; it would have no basis to pursue

its claims were it not a grant recipient or subgrantee. But its rights under the First Amendment,

the Fifth Amendment, and the other constitutional provisions it cites exist independent of the

Termination Provision’s enforcement.”).

Non-binding decisions to the contrary, based on different factual circumstances or

different interpretations of the various governing opinions, do not persuade this Court. See, e.g.,

Sustainability Inst. v. Trump, No. 25-1575, 2025 WL 1587100, at *1-2 (4th Cir. June 5, 2025)

(granting, over a dissent, motion for stay of district court’s injunction in case involving APA

challenges to grant terminations, in light of Department of Education); Vera Inst., 2025 WL

1865160, at *7, 11; Harris Cnty. v. Kennedy, -- F. Supp. 3d --, 2025 WL 1707665, *4-6, 11-15

(D.D.C. June 17, 2025) (holding that the Court had jurisdiction over a separation of powers

claim but not an APA arbitrary-and-capricious claim in light of Department of Education); Ass’n

46
for Educ. Fin. & Pol’y, Inc. v. McMahon, -- F. Supp. 3d --, 2025 WL 1568301, at *10-11

(D.D.C. June 3, 2025) (rejecting claims about grant terminations as “programmatic challenge”

under Lujan that if brought as individual challenges, would be barred by Tucker Act); Sols. in

Hometown Connections v. Noem, No. 25-cv-885, 2025 WL 1103253, at *7-11 (D. Md. Apr. 14,

2025) (determining the Tucker Act gave the Court of Federal Claims exclusive jurisdiction over

APA claims regarding terminations of grants from the USCIS’s Office of Citizenship),

injunction denied, 2025 WL 1530318 (May 29, 2025); U.S. Conf. of Catholic Bishops v. Dep’t of

State, 770 F. Supp. 3d 155, 162-65 (D.D.C. 2025) (holding that the requested relief in a

challenge to termination of contracts was essentially contractual). 10

As a result, the Tucker Act does not grant the Court of Federal Claims exclusive

jurisdiction over plaintiffs’ claims here, and the APA’s waiver of sovereign immunity applies.

There is no jurisdictional barrier to review of plaintiffs’ claims or to resolution of plaintiffs’

pending motions.

10
Defendants also cite as authority in their favor Pippenger v. U.S. DOGE Serv., No. 25-cv-1090 (BAH),
2025 WL 1148345, at *5 (D.D.C. Apr. 17, 2025), but that order denying an emergency request for a temporary
restraining order is not at all relevant here. In that case, former employees, program partners, a personal services
contractor, and a donor of the U.S. Institute of Peace sued DOGE and DOGE-related officials, as well as other
executive branch officials, challenging the removal of the Institute’s Board members, the transfer of the Institute’s
assets, and the discontinuation of the Institute’s activities, which included termination of contracts. See id. at *1.
The underlying legal issues related to the scope of presidential removal power and the nature of the organization,
e.g., whether the Institute was located in the Executive Branch and exercised executive powers or not. In resolving
the plaintiffs’ emergency TRO, the Court did not opine on whether the Supreme Court’s Department of Education
stay order, issued less than two weeks earlier, deprived the Court of jurisdiction over APA claims related to the
termination of the Institute’s contracts but rather simply noted, in the face of the other disputed fundamental issues
about the nature of the Institute, the absence of fulsome consideration by the parties of that issue as well: “[I]n this
preliminary posture with incomplete briefing presented in short form after the TRO hearing when raised by the
Court, plaintiffs” had not “sufficiently distinguished” that holding. Id. at *5. Here, the issue has been fully briefed
and discussed at the hearing, and the Supreme Court’s order has been amply distinguished both here and in other
cases.

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B. Likelihood of Success on the Merits

Turning to the merits of plaintiffs’ claims, plaintiffs are likely to succeed on Count Five

with respect to the USDN grant termination and the anticipated termination of AC’s Grant #2

and on Count Four with respect to the five already-terminated grants in the record. Plaintiffs

have not, at this stage, however, demonstrated a likelihood of success with respect to their

constitutional challenges (Counts One and Two) or their contrary-to-regulation APA challenge

(Count Three). Plaintiffs also have not demonstrated on the present record a likelihood of

success on their claims with respect to the broader alleged policy, practice, or pattern of

terminations due to changed policy priorities. 11

Each claim is addressed seriatim.

1. Constitutional Due Process Challenge: Counts One and Two

Plaintiffs cannot demonstrate that they are likely to succeed on either of their

constitutional due process claims. Starting with plaintiffs’ procedural due process challenge, in

Count One, plaintiffs argue that they “have a constitutionally protected property interest in the

grant funding they applied for [and] were awarded” and thus “were entitled to due process before

Defendants summarily terminated their awards without prior notice or opportunity to be heard.”

Pls.’ Mem. at 34. Defendants respond that plaintiffs have no “protected property interest in

continued grant funding” and, in any event, did not exhaust all administrative appeal procedure,

barring their constitutional due process claims in court. Defs.’ Opp’n at 26, 29. Even assuming

that exhaustion is no bar to plaintiffs’ claims, defendants are correct that plaintiffs likely have no

11
The Chesapeake Bay Foundation, Inc. filed an amicus brief in support of plaintiffs’ motion for preliminary
injunctive relief, arguing, inter alia, that USDA’s “policy, pattern, and practice of terminating grants intended to
support conservation agriculture is arbitrary and capricious,” Chesapeake Bay Amicus Br. at 18, ECF No. 23, and
has caused irreparable harm that has “already been felt by farmers and conservation organizations alike,” pointing
out that “[w]hen one organization has their grant terminated, entire projects are halted keeping trees out of the
ground and other BMPs [Best Management Practices] from being adopted . . .,” id. at 20.

48
constitutionally protected property interest in their grant funding and thus have no likelihood of

success on their constitutional due process claim.

“The first inquiry in every due process challenge is whether the plaintiff has been

deprived of a protected interest in ‘liberty’ or ‘property.’” NB ex rel. Peacock v. District of

Columbia, 794 F.3d 31, 41 (D.C. Cir. 2015) (quoting Gen. Elec. Co. v. Jackson, 610 F.3d 110,

117 (D.C. Cir. 2010)). “Only after finding the deprivation of a protected interest do we look to

see if the government’s [actions] comport with due process.” Id. (alteration in original) (quoting

Gen. Elec. Co., 610 F.3d 117). While the D.C. Circuit has recognized property interests in

“certain government benefits” to which one has “a legitimate claim of entitlement,” id. (second

passage quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)), courts have

generally rejected, aside from certain employment contexts, that parties have a constitutionally

protected property interest in other anticipated payments from the federal government, see, e.g.,

New Vision Photography Program, Inc. v. District of Columbia, 54 F. Supp. 3d 12, 29 (D.D.C.

2014) (collecting cases and explaining that the “Supreme Court ‘has never held that government

contracts for goods and services create property interests protected by due process’” (quoting 2

Richard J. Pierce Jr., Administrative Law Treatise 764 (5th ed. 2010))).

Plaintiffs compare their grants to government benefits, citing the observation in NB ex

rel. Peacock that if “the statute or implementing regulations place substantive limitations on

official discretion to withhold award of the benefit upon satisfaction of the eligibility criteria,

there is a legitimate claim of entitlement, as to which the Due Process Clause affords protection.”

Pls.’ Mem. at 33-34 (quoting NB ex rel. Peacock, 794 F.3d at 41-42). Plaintiffs’ grants,

however, do not satisfy that premise. The basis for plaintiffs’ awards was completely

49
discretionary and plaintiffs do not cite anything in the statutes requiring the USDA to award

them grants even they satisfy certain criteria.

Plaintiffs posit, however, that the awarding of the grant converts the award to an

“entitlement” because 2 C.F.R. § 200.340 places “substantive limitations on official discretion”

to terminate the awards and “withhold” the funds at issue, NB ex rel. Peacock, 794 F.3d at 41-42

(quoting Wash. Legal Clinic for the Homeless v. Barry, 107 F.3d 32, 36 (D.C. Cir. 1997)), and

that the grant awards are not traditional government contracts. See Pls.’ Reply at 15-16.

Plaintiffs are correct that they do have legal rights to ongoing funds under their grants, conferred

by the regulations, the APA, and the agreements themselves, but not every legal interest is a

constitutionally protected one. See Am. Fed. of Gov’t Emps., AFL-CIO, Local 446 v. Nicholson,

475 F.3d 341, 353 (D.C. Cir. 2007) (“[T]his court has held that a mere violation of law does not

give rise to a due process claim.”). To constitute substantive limits “giv[ing] rise to a”

constitutionally “protected interest,” “the regulations [must] contain explicitly mandatory

language, i.e., specific directives to the decisionmaker that if the regulations’ substantive

predicates are present, a particular outcome must follow.” Tarpeh-Doe v. United States, 904

F.2d 719, 722-23 (D.C. Cir. 1990) (alteration in original) (second passage quoting Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454 (1989)). As the D.C. Circuit has instructed, “when a statute

leaves a benefit to the discretion of a government official, no protected property interest in that

benefit can arise.” Bloch v. Powell, 348 F.3d 1060, 1069 (D.C. Cir. 2003).

Section 200.340 of the OMB regulations, while placing some limits on termination, still

leaves officials with far too much discretion to confer a constitutionally protected entitlement.

This regulation instructs that a “federal award may be terminated” under certain circumstances,

not that certain circumstances must be met as prerequisites. 2 C.F.R. § 200.340(a) (emphasis

50
added); contra Tarpeh-Doe, 904 F.2d at 722-23. In particular, the fourth subpart leaves agency

officials with ample discretion to determine whether and how the program is no longer

effectuating “agency priorities.” Id. § 200.340(a)(4). The regulations also reference the “terms

and conditions of the Federal award,” indicating that plaintiffs’ rights are dependent upon the

assurance and guarantees provided within the award—thus not creating a separate constitutional

right apart from the award itself. Id. These are not the “mandatory, non-discretionary terms”

found to result in entitlements elsewhere. NB ex rel. Peacock, 794 F.3d at 42 (holding that a

plaintiff had a property interest in prescription drug coverage under Medicaid given that the law

required reimbursement “upon the satisfaction of all eligibility criteria” and the agency

“retain[ed no] discretion to deny a claim for a covered prescription drug”); see also Roth, 408

U.S. at 577-78 (describing property interests in public welfare payments and in certain unique

public employment contexts); Esparraguera v. Dep't of the Army, 101 F.4th 28, 33 (D.C. Cir.

2024) (noting “a property interest [in public employment] exists if the employee can ‘be

removed only for cause,’” under applicable statutory and regulatory provisions)

(quoting Thompson v. District of Columbia, 530 F.3d 914, 918 (D.C. Cir. 2008))). Despite

lacking sufficient consideration directly benefitting the government to be considered “contracts”

under the Tucker Act for purposes of jurisdiction, the grants at issue here—analogously to

government contracts—provide for certain legal protections to grant recipients without

enshrining a constitutional entitlement since those protections are far less than mandatory in

dictating an outcome if regulatory predicates are met. See New Vision Photography, 54 F. Supp.

3d at 29 (noting that enforcement of commercial contracts is “qualitatively different from the

interests the Supreme Court has thus far viewed as ‘property’ entitled to procedural due process

protection” (quoting S&D Maint. Co. v. Goldin, 844 F.2d 962, 966 (2d Cir. 1988))).

51
Finally, while plaintiffs point to one case where a court has recognized a constitutionally

protected property interest in grant agreements of the kind at issue here, see Pls.’ Reply at 16

(citing La. Delta Serv. Corps, 2025 WL 1787429, at *26), that case is neither binding on nor

persuasive on this issue to this Court. See Vera Inst., 2025 WL 1865160, at *15-16 (concluding

no such property interest exists in grant agreements); see also Nat’l Urb. League v. Trump, -- F.

Supp. 3d --, 2025 WL 1275613, at *17-18 (D.D.C. 2025) (in considering a challenge to the DEI-

related executive order based on potential termination of federal awards, rejecting a due process

claim and explaining that government contracts do not give rise to a protected due process

interest). Without a constitutionally protected property interest, plaintiffs are not likely to

establish a due process violation warranting preliminary injunctive relief here.

Turning to plaintiffs’ second due process claim (Count Two), plaintiffs argue that

defendants’ “policy and practice . . . violates the Due Process Clause by terminating grants in an

unconstitutionally vague manner.” Pls.’ Mem. at 35. In particular, plaintiffs indicate that under

defendants’ interpretation of § 200.340(a)(4), which allows for termination of grants based on

new policy priorities, the regulation enables “boundless discretion,” Rough Hr’g Tr. at 50:13-

51:6, and “arbitrar[y] impos[ition]” of new requirements, Pls.’ Mem. at 35. This claim fails for

the same reason as the first due process challenge: plaintiffs do not have a constitutionally

protected property interest. See Nat’l Urb. League, 2025 WL 1275613, at *17 (“[A] void-for-

vagueness challenge is,’ at bottom, ‘a due-process claim,’ so Plaintiffs must show that they were

‘deprived of a constitutionally-protected property or liberty interest.’” (alterations in original)

(quoting McClelland v. Katy Ind. Sch. Dist., 63 F.4th 996, 1013 (5th Cir. 2023))). In any case,

given that “economic regulation is subject to a less strict vagueness test,” Village of Hoffman

Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498 (1982), and that the effects of

52
“imprecision are not constitutionally severe” when “the Government is acting as patron rather

than as sovereign,” National Endowment for the Arts v. Finley, 524 U.S. 569, 589 (1998),

plaintiffs are unlikely to succeed on Count Two, even assuming they did have a constitutionally

protected property interest in their grants.

2. APA Challenges: Counts Three, Four, and Five

Having determined that plaintiffs’ first two counts do not justify relief at this preliminary

stage, plaintiffs’ challenges under the APA are considered next. Plaintiffs USDN and AC have

shown they are likely to succeed on the merits of Count Five with respect to the terminations of

USDN and AC’s Grant #2, and all plaintiffs have shown they are likely to succeed on the merits

of Count Four with respect to the five original individual grant terminations in the record—

USDN’s grant, OBC’s grant, AC’s Grant #1, PFC’s grant, and IATP’s grant. Yet, because the

record lacks sufficient evidence to establish the scope and contours of the alleged policy and

practice, no broader relief affecting parties or grants not before this Court is warranted.

a) Availability of APA Review

At the outset, defendants argue that APA review is not available because “grant funding

decisions are committed to agency discretion by law” and because plaintiffs are not challenging a

final, discrete agency action. Defs.’ Opp’n at 17-18, 20. Neither constitutes a bar to APA

review here.

(1) Committed to Agency Discretion by Law

First, regardless of whether “grant funding” decisions may be committed to agency

discretion, grant termination decisions are not fully discretionary but are subject to the limits set

in applicable regulations, so the grant terminations at issue here are reviewable under the APA.

Despite the “strong presumption that Congress intends judicial review of administrative action,”

Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986), the APA does not
53
allow for review of agency action “committed to agency discretion by law,” 5 U.S.C.

§ 701(a)(2). A decision is considered to be committed to the agency’s judgment in “those rare

circumstances where the relevant statute ‘is drawn so that a court would have no meaningful

standard against which to judge the agency’s exercise of discretion.’” Lincoln v. Vigil, 508 U.S.

182, 191 (1993) (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)). In Lincoln, the

Supreme Court held that where Congress simply allocated an annual “lump-sum appropriation[]”

to the agency, the decision to no longer fund a particular program was “committed to agency

discretion.” Id. at 192-93. “After all,” the Court explained, “the very point of a lump-sum

appropriation is to give an agency the capacity to adapt to changing circumstances and meet its

statutory responsibilities in what it sees as the most effective or desirable way.” Id.; see also

Milk Train, Inc. v. Veneman, 310 F.3d 747, 751 (D.C. Cir. 2002) (holding that even where

Congress has stated funds should be used for a specific purpose, the agency has sole discretion to

determine the manner in which they are employed). Where, by contrast, “Congress . . . put[s]

restrictions in the operative statutes,” funding decisions may be reviewable. Lincoln, 508 U.S. at

193.

Defendants rely on these principles to argue that APA review is unavailable because

“[t]he statutes that authorize the Department to issue the grants” here do not provide criteria by

which “courts [can] meaningfully second-guess” agency determinations. Defs.’ Opp’n at 20-21.

Defendants conflate, however, an initial funding decision from a termination decision.

Regardless of whether the statutes at issue here do not meaningfully constrain defendants’

funding decisions, plaintiffs have not challenged any of defendants’ denials of awards. They

rather challenge agency decisions prematurely to terminate their awards arbitrarily and

capriciously and contrary to regulation and statute.

54
Then-Judge Jackson explained in Policy and Research, LLC v. Department of Health and

Human Services, 313 F. Supp. 3d 62 (D.D.C. 2018), that despite the existence of a statute giving

an agency discretion over funding decisions, regulations may still “expressly address—and

limit—the agency’s discretion to ‘terminate’ monetary awards,” and those rules provide

standards for judicial review. Id. at 76 (citing 45 C.F.R. § 75.372, which restricts HHS’s ability

to terminate a federal award to four reasons, including having a “for cause” justification or the

recipient failing to comply with conditions). The court ultimately held that the agency “violated

the APA because the agency failed to explain its reasoning and acted contrary to its regulations

when it terminated plaintiffs’ grants.” Id. at 83.

Similarly, here defendants have constrained their discretion to terminate grants by

adopting the OMB Uniform Guidance regulations. Defendants do not contest that they are

bound by 2 C.F.R. § 200.340(a)-(b), which provides four reasons for termination, and § 200.341,

which establishes a “notification of termination” requirement. These are meaningful standards

by which this Court may review termination decisions. See, e.g., Thakur, 2025 WL 1734471, at

*17 (holding that the termination of grants was not committed to agency discretion because of

regulations like § 200.340 and § 200.341, which limit the “agencies’ discretion [and] create

‘meaningful standard[s] by which to judge the [agency]’s action” (alterations in original)

(quoting California v. Dep’t of Educ., 132 F.4th at 97)); Woonasquatucket River Watershed

Council, 778 F. Supp. 3d at 468 (holding that the termination of grants was not committed to

agency discretion because “[t]his case closely tracks [Policy and Research]—the main difference

being, instead of one program’s termination, that the Government’s actions here involve

summarily, indefinitely freezing already-awarded money affecting many more”); cf. Elev8

Baltimore, 2025 WL 1865971, at *21 (“[E]ven where action is committed to absolute agency

55
discretion by law, courts have assumed the power to review allegations that an agency exceeded

its legal authority, acted unconstitutionally, or failed to follow its own regulations[.]” (alterations

in original) (quoting Elecs. of N.C., Inc. v. Se. Power Admin., 774 F.2d 1262, 1267 (4th Cir.

1985))). APA review, therefore, is not barred either by the discretionary nature of the initial

decision to fund an award to a particular recipient or by the more limited discretion allowed to

the agency in the challenged termination decision.

(2) Final, Discrete Agency Action

Second, plaintiffs’ claims of both invalid individual grant terminations and an unlawful

broad policy or practice of grant terminations are final and discrete and thus subject to APA

review. Nonetheless, plaintiffs lack sufficient evidence in the record to establish the contours of

the alleged policy or practice and therefore cannot demonstrate they are likely to succeed on any

of their claims with respect to that practice today.

The APA provides for review only of “final agency action.” 5 U.S.C. § 704. “As a

general matter, two conditions must be satisfied for agency action to be ‘final’: First, the action

must mark the ‘consummation’ of the agency’s decisionmaking process . . .—it must not be of a

merely tentative or interlocutory nature.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997)

(quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). “And

second, the action must be one by which ‘rights or obligations have been determined,’ or from

which ‘legal consequences will flow.’” Id. at 178 (quoting Port of Bos. Marine Terminal Ass’n

v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 71 (1970)). For instance, a “policy

announcement, which has no legal consequence” and has not resulted in any particular decision

or action that has violated any rights, is not a final agency action subject to review. In re Aiken

Cnty., 645 F.3d 428, 437 (D.C. Cir. 2011). By contrast, a formal written opinion explaining

56
“how [a] proposed action will affect” an interest is considered final where it “alter[s] the legal

regime to which the action agency is subject, authorizing it to take” certain actions only if abides

by certain conditions. Bennett, 520 U.S. at 158, 178 (describing the Biological Opinion provided

by the Fish and Wildlife Service that “explain[s] how the proposed action will affect a species or

its habitat” and outlines alternatives to avoid that consequence or conditions to minimize impact

before certain projects may be approved).

Just as the challenged action must be, in some sense, complete, it must also be discrete.

A plaintiff cannot “seek wholesale improvement of” an agency “program by court decree.”

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 891 (1990) (emphasis in original) (describing a bar

on “pr

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11120515. Public record. Not legal advice.