UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CENTER FOR INTERNATIONAL LABOR SOLIDARITY, et al., Civil Action No. 25-1128 (BAH) Plaintiffs, Judge Beryl A. Howell v.

LORI CHAVEZ-DEREMER, in her official capacity as Secretary of Labor, et al.,

Defendants.

MEMORANDUM OPINION

To protect American workers from unfair labor practices and the concomitant competitive

advantage to foreign trading partners that comes from those foreign countries exploiting cheap

child labor and other vulnerable foreign workers, the Congress has appropriated funds to the

Bureau of International Labor Affairs (“ILAB”), a component of the U.S. Department of Labor

(“DOL”), to provide funding to organizations working to combat child labor and improve working

conditions around the globe, with required minimum funding levels for certain programs. As the

Senate Appropriations Committee explained in a report accompanying the Appropriations Act for

Fiscal Year 2024, ILAB’s cooperative agreement programs exist “to ensure workers and

businesses in the United States are not put at a competitive disadvantage by trading partner

countries not adhering to their labor commitments under trade agreements and trade preference

programs.” S. REP. NO. 118-84, at 31 (2023). This echoes the policy expressed by Congress nearly

forty years ago in the Omnibus Trade and Competitiveness Act of 1988,

tit.

I, § 1101(b)(14),

, 1125 (Aug. 23, 1988), enacted with the signature of then-President

1 Reagan, that “the denial of worker rights should not be a means for a country or its industries to

gain competitive advantage in international trade.”

ILAB characterizes its work as having a dual purpose: promoting “the values of the

American people” and “further[ing] the interests of [American] workers and businesses.” Our

Work (“ILAB Mission Statement”), U.S. Department of Labor Bureau of International Labor

Affairs, https://www.dol.gov/agencies/ilab/our-work (last visited June 27, 2025). In March 2025,

ILAB abruptly terminated all active cooperative agreements that were funding programs in foreign

trading partner countries, telling the awardees that the funded projects no longer effectuated the

agency’s priorities. Plaintiffs in this case—three nonprofit organizations who operated, pursuant

to cooperative agreements with ILAB, a combined total of fifteen labor-related projects in foreign

trading partner countries—have sued DOL and Labor Secretary Lori Chavez-DeRemer, arguing,

in a five-count complaint, that these across-the-board terminations of all ILAB cooperative

agreements, including their own, amounted to an unlawful and unilateral executive decision to end

funding for ILAB’s congressionally mandated programs. Plaintiffs seek relief in the form of

vacatur of the terminations and reinstatement of the cooperative agreements.

The parties now raise three legal issues for resolution. First, defendants seek dismissal of

this lawsuit for lack of subject-matter jurisdiction, arguing that plaintiffs’ claims fall within the

exclusive jurisdiction of the Court of Federal Claims under the Tucker Act,

(a)(1).

Second, both sides move for partial summary judgment on Counts I through IV of the complaint.

Finally, plaintiffs move for a preliminary injunction on Count V of the complaint. As explained

below, this Court may properly exercise subject-matter jurisdiction, but, on the current record,

neither side has demonstrated their entitlement to partial summary judgment on any claim, nor

have plaintiffs established entitlement to preliminary injunctive relief.

2 Accordingly, the parties’ partial cross-motions for summary judgment on Counts I through

IV and plaintiffs’ motion for a preliminary injunction on Count V are denied.

I. BACKGROUND

The relevant factual and procedural background is summarized below.

A. The Bureau of International Labor Affairs and its Cooperative Agreements

ILAB advances its objectives of improving working conditions, promoting workers’ rights,

and addressing the workplace exploitation of children and other vulnerable populations overseas

by “awarding and administering cooperative grant agreements” with organizations working on

relevant labor issues in foreign countries that are trading partners with the United States. Defs.’

Opp’n to Pls.’ Mot. for a Prelim. Inj. (“Defs.’ Opp’n”) at 3, ECF No. 19; see also, e.g., Pls.’ Mem.

of L. in Supp. of Pls.’ Mot. for a Prelim. Inj. (“Pls.’ Mem.”) at 5-6, ECF No. 9-1 (describing

projects funded by ILAB cooperative agreements run by the three plaintiffs in this case). Congress

has provided funding to ILAB for these cooperative agreements through both annual and

supplemental appropriations acts. Defs.’ Opp’n at 3.

In recent years at least, Congress has annually appropriated funds to ILAB for cooperative

agreements, with explicit instructions on how the funds are to be used, including the minimum

amount of funding to be provided, through cooperative agreement awards, for specific purposes.

For example, the Consolidated Appropriations Act, 2021 (“2021 Appropriations Act”),

Stat. 1182, 1559 (Dec. 27, 2020), appropriated $67,325,000 to ILAB, with

directions setting minimum and maximum appropriations levels for certain programs, specifically

“not more than $53,825,000 shall be for programs to combat exploitative child labor

internationally” and “not less than $13,500,000 shall be used to implement model programs that

address worker rights issues” in trading partner countries. This model of funding has been

repeated, with generally increasing funding amounts in subsequent appropriations laws. See, e.g., 3 Consolidated Appropriations Act, 2022 (“2022 Appropriations Act”),

Stat. 49, 434 (Mar. 15, 2022) (appropriating $74,525,000 for ILAB, with instructions that “not less

than $30,175,000 shall be for programs to combat exploitative child labor internationally and not

less than $30,175,000 shall be used to implement model programs that address worker rights issues

through technical assistance in countries with which the United States has free trade agreements

or trade preference programs”); Consolidated Appropriations Act, 2023 (“2023 Appropriations

Act”),

Stat. 4459, 4846 (Dec. 29, 2022) (appropriating $81,725,000 in

funding for ILAB and setting the same minimum funding level of $30,175,000 for the two

programs described in the 2022 Appropriations Act). For Fiscal Year 2024, Congress kept the

same total level of $81,725,000 in funding for ILAB as in the 2023 Appropriations Act and also

kept the same instructions on minimum spending of these funds for specified purposes,

specifically, that “not less than $30,175,000 shall be for programs to combat exploitative child

labor internationally and not less than $30,175,000 shall be used to implement model programs

that address worker rights issues through technical assistance in countries with which the United

States has free trade agreements or trade preference programs.” Further Consolidated

Appropriations Act, 2024 (“2024 Appropriations Act”),

Stat. 460, 641

(Mar. 23, 2024). The same levels and conditions established in the 2024 Appropriations Act were

maintained for 2025 when a full-year continuing resolution was signed into law on March 15,

2025. Full-Year Continuing Appropriations and Extensions Act, 2025 (“2025 Continuing

Resolution”),

(a), (c),

, 10-12 (Mar. 15, 2025).

In addition to these annual appropriations acts, in 2020, when the United States entered

into the United States-Mexico-Canada Agreement (“USMCA”) trade agreement, Congress

enacted, with the signature of President Trump in his first term, the United States-Mexico-Canada

4 Agreement Implementation Act (“USMCA Implementation Act”),

Stat.

11 (Jan. 29, 2020), which appropriated funds to ILAB to support this agreement’s implementation

through “projects to support labor justice reform in Mexico.” Defs.’ Opp’n at 3; see also USMCA

Implementation Act, 134 Stat. at 100. To this end, Congress appropriated $180 million, with

instructions that this funding “shall be used to support reforms of the labor justice system in

Mexico,” in the form of cooperative agreement awards “to support worker-focused capacity

building, efforts to reduce workplace discrimination in Mexico, efforts to reduce child labor and

forced labor in Mexico, efforts to reduce human trafficking, efforts to reduce child exploitation,

and other efforts related to implementation of the USMCA,” for the four-year period ending on

December 31, 2023. USMCA Implementation Act, 134 Stat. at 100. Whether funding for

USMCA implementation has been renewed or supplemented by Congress beyond that December

2023 date is unclear on the current record in this case.

B. Plaintiffs and Their ILAB Cooperative Agreements

Before the March 2025 terminations of all ILAB cooperative agreements, ILAB had

awarded fifteen active cooperative agreements to the three plaintiff organizations in this case,

Defs.’ Opp’n at 4, and a total of about sixty-nine such cooperative agreements, Tr. of June 11,

2025, Hr’g on Partial Cross-Mots. for Summ. J. and Mot. for Prelim. Inj. (“Mots. Hr’g Tr.”) at

26:7-10, ECF No. 28 (plaintiffs’ counsel stating “[o]ur understanding is that there are 54”

agreements in addition to those held by plaintiffs); see also id. at 59:21-60:2 (plaintiffs’ counsel

confirming understanding that total of sixty-nine cooperative agreements were terminated in

March 2025); id. at 60:3-6 (defendants’ counsel stating, “I don’t have the exact number in front of

me,” but that “I don’t have a basis to disagree with it being in that range”). The fifteen terminated

cooperative agreements awarded to plaintiffs are briefly described below.

1. American Center for International Labor Solidarity 5 Plaintiff American Center for International Labor Solidarity (“Solidarity Center”) is a

nonprofit labor organization established in 1997 by the leadership of the American Federation of

Labor-Congress of Industrial Organizations (“AFL-CIO”). Errata to Pls.’ Mot. for a Prelim. Inj.,

ECF No. 13, Ex. 1, Decl. of Shawna Bader-Blau, Executive Director, Solidarity Center (“Bader-

Blau Decl.”) ¶¶ 3-4, ECF No. 13-1. 1 The Solidary Center has extensive experience “implementing

programs related to fundamental labor rights around the world and in U.S. trade partner countries,

including programs focused on workers’ rights to freedom of association and to collectively

bargain, as well as programs focused on the elimination of forced and child labor and human

trafficking,” id. ¶ 7, and has received funding from ILAB for this work for 25 years, id. ¶ 8.

As of March 1, 2025, the Solidarity Center had eleven active cooperative agreements with

ILAB, which agreements supported programming in seventeen foreign countries, including

Mexico, Honduras, Guatemala, El Salvador, Uzbekistan, Bangladesh, Brazil, Colombia, Peru,

Liberia, Nigeria, the Republic of Georgia, Indonesia, the Philippines, Malaysia, Chile, and South

Africa. Id. ¶¶ 9-10. 2 The total funding awarded and the congressional authorization for and

general purpose of each of these eleven cooperative agreements are summarized as follows:

(1) $10 million to “strengthen workers’ ability to exercise their labor rights in Mexico,” as authorized and funded by the USMCA Implementation Act, with a termination date on June 15, 2025. Id. ¶ 10.a.

(2) $20.75 million for efforts to “build[] an independent and democratic labor movement to protect workers’ rights in Mexico,” as authorized and funded by

1 The Bader-Blau Declaration was initially filed as an exhibit to plaintiffs’ motion, but that version of the declaration was placed under seal, at plaintiffs’ request and without objection from defendants, to protect the privacy of the unredacted names and contact information of “individuals who are not party to this suit.” Pls.’ Unopposed Mot. to Seal Document, ECF No. 12; Min. Order (May 9, 2025) (granting plaintiffs’ unopposed sealing motion). At the same time plaintiffs filed their sealing motion, they filed the cited “corrected version” of the Bader-Blau Declaration, which filing is “identical to the originally filed version, except that certain names and email addresses” of non-party individuals have been redacted. Errata to Pls.’ Mot. at 1. 2 The Bader-Blau Declaration says the ILAB cooperative agreements supported the Solidarity Center’s programming in sixteen countries, Bader-Blau Decl. ¶ 10, but seventeen countries are identified where work was performed under these agreements, id. ¶¶ 10.a-k.

6 the USMCA Implementation Act, with a termination date on July 18, 2026. Id. ¶ 10.b.

(3) $6.25 million for efforts to “improv[e] respect for workers’ rights in key industries in” Honduras, Guatemala, and El Salvador, as authorized and funded by the 2021 Appropriations Act, with a termination date on August 31, 2026. Id. ¶ 10.c.

(4) $3.1 million for a program to “address[] forced labor and other labor rights violations in the cotton industry in Uzbekistan,” as authorized and funded by the 2022 Appropriations Act, with a termination date on December 31, 2026. Id. ¶ 10.d.

(5) $3 million to “improve respect for workers’ rights in Bangladesh,” as authorized and funded by the 2022 Appropriations Act, with a termination date on September 30, 2026. Id. ¶ 10.e.

(6) $12.2 million for projects to “improve respect for labor rights in” Brazil, Colombia, and Peru, as authorized and funded by the 2022 Appropriations Act, with a termination date on December 14, 2026. Id. ¶ 10.f.

(7) $5 million to “elevate women’s participation” in Liberia and Nigeria, as authorized and funded by the 2022 Appropriations Act, with a termination date on December 14, 2026. Id. ¶ 10.g.

(8) $2 million to “strengthen labor law understanding and enforcement in the Republic of Georgia,” as authorized and funded by the 2023 Appropriations Act, with a termination date on September 30, 2026. Id. ¶ 10.h.

(9) $6 million to “promote quality infrastructure jobs on project sites . . . in Indonesia and the Philippines,” as authorized and funded by the 2023 Appropriations Act, with a termination date on March 31, 2028. Id. ¶ 10.i.

(10) $3 million to “strengthen workers’ rights in the electronics supply chain in Malaysia,” as authorized and funded by the 2024 Appropriations Act, with a termination date on December 31, 2028. Id. ¶ 10.j.

(11) $7 million to “promote the inclusion of workers’ voices in climate policymaking in Brazil, Chile, Colombia, Peru, and South Africa,” as authorized and funded by the 2024 Appropriations Act, with a termination date on December 31, 2028. Id. ¶ 10.k.

For the 2025 calendar year, projected expenditures from these eleven awards totaled

approximately $12 million, which represented roughly 24% of the Solidarity Center’s annual

7 budget. Id. ¶ 11. As a result of the termination of this funding, the Solidarity Center has laid off

40 employees, representing 17% of the organization’s employees worldwide. Id. ¶ 23. These

layoffs have also forced the Solidarity Center to incur additional, unplanned expenses, including

“at least $400,000 in legally mandated severance, unused benefits, and employer-paid taxes” in

Mexico alone. Id. ¶ 25. The funding terminations have also created “substantial” legal risk for

the Solidarity Center, including the potential for loss of legal registration and loss of ability to

operate in certain countries. See, e.g., id. ¶¶ 25-26 (outlining such risks in Mexico, the Republic

of Georgia, and Uzbekistan).

2. American Institutes for Research

Plaintiff American Institutes for Research (“AIR”) is a “nonpartisan, not-for-profit

organization that conducts behavioral and social science research and delivers technical

assistance” on real-world policy issues “in areas such as education, health, workforce

development, and labor rights.” Pls.’ Mot. for a Prelim. Inj. (“Pls.’ Mot.”), ECF No. 9, Ex. 3,

Decl. of David Seidenfeld, Senior Vice President in charge of the International Development

Division, AIR (“Seidenfeld Decl.”) ¶ 3, ECF No. 9-3. Since 2019, AIR has worked with the

Mexican government to improve the country’s capacity to institute labor reforms enacted after the

signing of the USMCA and to improve the enforcement of Mexican labor laws. Id. ¶ 5. This work

has been “exclusively funded” by ILAB cooperative agreements. Id. ¶ 6.

As of March 1, 2025, AIR had three active cooperative agreements with ILAB, each of

which focused on “labor reform implementation and labor law enforcement in Mexico,” id. ¶ 7,

and were authorized and funded by the USMCA Implementation Act, id. ¶ 8, including:

(1) $15 million over five years to strengthen Mexican labor inspector capacity “at the federal level and in eight states, with a particular focus on priority supply chains under the USMCA,” with a termination date in August 2027. Id. ¶ 7.a.

8 (2) $33.45 million over seven years to “help address some of Mexico’s most pressing and immediate needs in its transition to a new labor justice system,” which was enacted after the signing of the USMCA, with a termination date in December 2026. Id. ¶ 7.b.

(3) $10.8 million over five years “to increase the effectiveness of new labor conciliation mechanisms at the federal level and in sixteen states [in Mexico],” with a termination date in June 2026. Id. ¶ 7.c.

“ILAB funding was the only source of support for AIR’s technical assistance work in

Mexico,” meaning that “without ILAB funding, AIR will need to shut down [its] programming in

Mexico,” terminate staff in Mexico, and close its Mexico office. Id. ¶ 20. The cooperative

agreement terminations will impose “substantial additional costs” on AIR, including “an additional

$2.7 million in costs from terminating staff.” Id. ¶ 22.

3. Global March Against Child Labor

Plaintiff Global March Against Child Labor (“Global March”) is a “worldwide network of

trade unions, teachers’ organizations, and civil society groups that works toward the shared

development goals of eliminating and preventing all forms of child labor, slavery, and trafficking,”

with a particular focus on “creating supply chains that do not rely on child labor.” Pls.’ Mot, Ex.

4, Decl. of Marco Dubbelt, Senior Director, Global March (“Dubbelt Decl.”) ¶¶ 3, 6, ECF No. 9-

4. As of March 1, 2025, Global March had one active cooperative agreement with ILAB. Id. ¶ 7.

The $4 million award, authorized and funded by the 2021 Appropriations Act, was made to

“support a project to build the capacity of civil society organizations to fight child labor” in Nepal,

Peru, and Uganda, and had a termination date in December 2025. Id. ¶¶ 7-9, 11.

The funding from this cooperative agreement with ILAB represented 60% of Global

March’s total budget. Id. ¶ 22. As a result of the agreement’s termination, Global March

“anticipate[s] reducing staff by 60%,” id. ¶ 23, and its partner organizations have also felt the

9 effects, with the partner organization in Uganda “already determin[ing] that it will need to shut its

doors entirely” and the partners in Nepal and Peru anticipating staff cuts of 30% due to Global

March’s inability to continue supporting their work, id. ¶ 24.

C. Termination of ILAB’s Cooperative Agreements

On January 20, 2025, President Trump issued Executive Order 14169 (“EO 14169”), titled

“Reevaluating and Realigning United States Foreign Aid,”

(Jan. 30, 2025).

This Order proclaimed that U.S. foreign aid was “not aligned with American interests,”

§ 1, 90

Fed. Reg. at 8619, and decreed that “no further United States foreign assistance shall be disbursed

in a manner that is not fully aligned with the foreign policy of the President of the United States,”

id. § 2. To effectuate this policy, EO 14169 ordered an immediate pause in “United States foreign

development assistance,” id. § 3(a), and directed department and agency heads responsible for

existing foreign aid programs to review those programs, id. § 3(b), and determine, within 90 days

of the issuance of EO 14169, “whether to continue, modify, or cease each foreign assistance

program,” in consultation with the Director of the Office of Management and Budget (“OMB”)

and “with the concurrence of the Secretary of State,” id. § 3(c).

Pursuant to EO 14169, on February 26, 2025, OMB issued Budget Data Request No. 25-

08 (“BDR 25-08”), which required all federal agencies that “fund ‘foreign assistance,’” as defined

in BDR 25-08, to collect information about those programs to “assess alignment” of these

programs with President Trump’s foreign policy priorities. Off. of Mgmt & Budget, Exec. Off. of

the President, OMB Budget Data Request No. 25-08, at 1 (Feb. 26, 2025). BDR 25-08 defined

“foreign assistance,” in relevant part, as “any assistance or support provided to, or received by,

non-U.S. citizen, non U.S. person or entity; foreign non-governmental organization; or U.S. person

or entity related to national security, foreign policy, defense, trade, development, and multilateral

and humanitarian operations” or “any federally funded . . . grants, loans, or technical assistance of 10 any kind . . . that facilitates the transfer of resources from the United States government to another

country, or to a foreign, international or multilateral organization.” Id. at 3.

On March 3, 2025, each plaintiff received an email from ILAB requesting, within two days,

by March 5, completion of a “lengthy questionnaire” for the agency to respond to BDR 25-08.

Bader-Blau Decl. ¶ 15; Seidenfeld Decl. ¶ 13; Dubbelt Decl. ¶ 15; see also Defs.’ Opp’n at 6

(noting that agencies were required to “collect, score and report 36 non-dispositive data elements,”

and that ILAB contacted its awardees about this requirement on March 3, 2025). Plaintiffs were

advised that their responses would be reviewed by ILAB to “prepare submissions for OMB.”

Bader-Blau Decl. ¶ 15; Seidenfeld Decl. ¶ 13; Dubbelt Decl. ¶ 15. Each plaintiff timely submitted

the requested responses. Bader-Blau Decl. ¶ 15; Seidenfeld Decl. ¶ 13; Dubbelt Decl. ¶ 16. ILAB

submitted the gathered data to OMB on March 19, 2025. Defs.’ Opp’n at 6.

In the days following submission of their responses, plaintiffs remained in contact with

ILAB. The Solidarity Center, for instance, “learned informally from ILAB staff that [its] projects

all scored well, that they generally met foreign policy priorities, and that a few of [its] awards were

. . . among the highest scoring of any ILAB projects.” Bader-Blau Decl. ¶ 15. AIR, too, “received

informal feedback that [its] responses scored highly for alignment with President Trump’s” foreign

policy priorities. Seidenfeld Decl. ¶ 13. Global March, meanwhile, “responded to several follow-

up questions from ILAB staff,” Dubbelt Decl. ¶ 16, but never received any information “that

project cancellation might be imminent,” id. ¶ 17.

Notwithstanding ILAB’s generally positive feedback with no negative comments to

plaintiffs’ responses to BDR 25-08, between March 13 and March 27, 2025, all fifteen of plaintiffs’

active cooperative agreements were terminated by DOL. See Bader-Blau Decl. ¶ 17; Seidenfeld

Decl. ¶ 15; Dubbelt Decl. ¶ 19. In addition, all other active ILAB cooperative agreements were

11 also terminated during the month of March 2025. Mots. Hr’g Tr. at 43:18-23 (defendants’ counsel

confirming that “all cooperative grant agreements that ILAB had in effect” were cancelled “[i]n

March”).

On March 13, 2025, the Solidarity Center received a notice from DOL that its project in

Uzbekistan had been terminated, with the sole reason given that the agreement “no longer

effectuates the program goals.” See Bader-Blau Decl. ¶ 18; id., Ex. B (“Solidarity Center

Termination Letters”) at 1, ECF No. 13-1 at 23-33. The next day, March 14, 2025, the Solidarity

Center received termination notices of two other cooperative agreements, which notices stated that

the terminations were “pursuant to a directive from the U.S. Department of Labor Office of the

Secretary,” as well as ILAB, “for alignment with Agency priorities and national interest,” citing

and “the termination conditions” of the agreements. See Bader-Blau Decl. ¶ 19;

Solidarity Center Termination Letters at 2-3. That evening, DOL Secretary Lori Chavez-DeRemer

posted on the social media platform X, in an apparent reference, at least in part, to the terminated

agreements, “We’re working with @DOGE to root out waste, fraud, & abuse. @USDOL just

saved taxpayers $30M by eliminating ‘America Last’ programs in foreign countries like Indonesia,

Colombia, Guatemala, Chile, & Brazil. Under @POTUS, the American Worker ALWAYS comes

First.” Pls.’ Mem. at 7 (quoting Secretary Lori Chavez-DeRemer (@SecretaryLCD), X (Mar. 14,

2025, 6:34 PM), https://x.com/SecretaryLCD/status/1900677057211736407 [hereinafter March

14 Chavez-DeRemer Post]).

The Solidarity Center’s remaining eight agreements with ILAB were all terminated on

March 27, 2025, by letters explaining the authorities and rationale for the terminations in identical

language to the two March 14 letters. Bader-Blau Decl. ¶ 21; Solidarity Center Termination

Letters at 4-11. Similarly, on March 26 and 27, 2025, AIR received termination notices for each

12 of its three agreements with ILAB, Seidenfeld Decl. ¶¶ 15-16;

Ex. A (“AIR Termination

Letters”) at 1-3, ECF No. 9-3 at 10-12, and Global March’s single agreement was terminated on

March 27, 2025, Dubbelt Decl. ¶ 19;

Ex. B (“Global March Termination Letter”), ECF No. 9-

4 at 22. Each of these letters explained the authorities and rationale for the terminations using the

same language as in the two March 14 letters to Solidarity Center. See Seidenfeld Decl. ¶ 16; AIR

Termination Letters at 1-3; Dubbelt Decl. ¶ 19; Global March Termination Letter. The

terminations of all fifteen of plaintiffs’ agreements were immediate, with the end date of the

agreements updated to reflect the date of each termination letter. See Solidarity Center

Termination Letters at 1-11; AIR Termination Letters at 1-3; Global March Termination Letter

(all 15 termination letters stating that, “[a]s part of the termination process, . . . the end date of the

period of performance on this award will immediately be truncated and reflect today’s date”).

In apparent anticipation of the March 27, 2025, termination notices, on the afternoon of

March 26, 2025, the official Department of Government Efficiency (“DOGE”) account on X

posted, “Great work today by @USDOL @SecretaryLCD @Sonderling47 cancelling $577M in

‘America Last’ grants for $237M in savings.” Bader-Blau Decl. ¶ 20;

Ex. C (“March 26

Chavez-DeRemer Post”), ECF 13-1 at 35. This post included descriptions of six projects,

including two of the Solidarity Center’s projects for which termination letters were sent the next

morning. On the same day as the DOGE post, Secretary Chavez-DeRemer’s official account re-

posted the DOGE post, with additional text stating, “The era of Americans’ tax dollars bankrolling

foreign handouts for things like ‘Improving Gender Equity in the Mexican Workplace’ is over.

We just saved $237M, which will be used to reinvest into developing our workforce and protecting

our children. #AmericaFirst.” March 26 Chavez-DeRemer Post. On April 1, 2025, the official

Department of Labor account on X reposted the same March 26, 2025, DOGE post, stating in part

13 that “we’re reinvesting this money into the AMERICAN Workforce.” Pls.’ Reply Mem. in Supp.

of Pls.’ Mot. (“Pls.’ Reply”) at 20, ECF No. 24 (quoting U.S. Department of Labor (@USDOL),

X (Apr. 1, 2025, 12:38 PM), https://x.com/USDOL/status/1907110344977236094 [hereinafter

April 1 DOL Post]).

Over six weeks after sending many of the termination notices, DOL sent termination

guidance to all terminated recipients, including plaintiffs, on May 16, 2025. Defs.’ Opp’n, Ex. 1,

Decl. of Thomas S. Kodiak, DOL’s Administrator of the Office of Grants Management,

Employment, and Training Administration (“Kodiak Decl.”) ¶ 2, ECF No. 19-1; Kodiak Decl., Ex.

A (“DOL Termination Guidance”), ECF No. 19-1 at 4. The guidance “provided express

authorization that costs to the recipients . . . resulting from financial obligations incurred by the

recipients . . . after termination (i.e. ‘termination costs’) are allowable.” Kodiak Decl. ¶ 2.

Permitted expenditures include “such costs as rental costs under unexpired leases, claims under

subawards and accounting, legal, clerical, and similar costs reasonably necessary for the

preparation and presentation to ILAB of settlement claims and supporting data with respect to the

terminated portion of the Federal award.”

Apart from the at least $3.1 million in staff termination costs, see Seidenfeld Decl. ¶ 22

(estimating $2.7 million in costs to plaintiff AIR from terminating staff); Bader-Blau Decl. ¶ 25

(estimating at least $400,000 in costs to plaintiff Solidarity Center from terminating staff in Mexico

alone), plaintiffs have no “exact figures” for the termination costs to be paid by ILAB but claim

the costs are “substantial,” Mots. Hr’g Tr. at 30:15-20. Defendants could provide no estimate of

the termination costs to be paid for plaintiffs’ terminated cooperative agreements, nor how those

costs would compare simply to continuing the projects through the original end dates set out in the

14 cooperative agreements.

(defendants’ counsel discussing the process for

closeout costs).

D. Procedural History

Plaintiffs filed the instant lawsuit on April 15, 2025, seeking, in their five-count complaint,

declaratory relief that the termination of “all of ILAB’s statutorily mandated grant and cooperative

agreement programs is unlawful” and injunctive relief “[v]acat[ing] Defendants’ ILAB

termination notices and order[ing] reinstatement of [all] the ILAB cooperative agreements,

including Plaintiffs’ agreements.” Compl. at 24, ECF No. 1. Three weeks later, on May 5, 2025,

plaintiffs moved for a preliminary injunction requiring the reinstatement of all ILAB cooperative

agreements “terminated between March 13 and March 27, 2025,” including plaintiffs’ agreements,

and prohibiting the termination of any such agreements during the pendency of this litigation. Pls.’

Mot. at 1.

In response to the Court’s order for the parties’ proposal(s) for proceeding, see Min. Order

(May 6, 2025), the parties jointly proposed to “consolidat[e] consideration of the motion for a

preliminary injunction with summary judgment on the merits” as to Counts I through IV of the

complaint. Parties’ Joint Statement Regarding Scheduling (“Parties’ JSR”) at 2, ECF No. 14.

Given that no administrative record had yet been compiled and produced by defendants, the parties

further explained their agreement that resolution on summary judgment of Count V (claiming that

defendants’ actions in terminating the cooperative agreements were arbitrary and capricious, in

violation of the Administrative Procedure Act (“APA”), see Compl. ¶¶ 84-87), “would be

premature” on the current record. Parties’ JSR at 2. The parties were less than clear as to whether

they wished to proceed, or not, on the motion for preliminary injunctive relief as to Count V.

Given this lack of clarity, the Court directed the parties to “file . . . a proposed order

reflecting exactly the briefing schedule and procedures proposed by the parties to be adopted to 15 govern resolution of plaintiffs’ . . . Motion for Preliminary Injunction.” Min. Order (May 9, 2025).

The parties subsequently filed a joint proposed order, which proposed that “the motion for a

preliminary injunction shall be treated as a motion for summary judgment as to Counts I through

IV of Plaintiffs’ complaint”—without any reservation of the pending preliminary injunction

motion as to Count V—and further that resolution of summary judgment on these counts would

not require the filing of any statements of material facts, as otherwise required for resolution of

summary judgment motions by D.D.C. Local Civil Rule 7(h)(1). Parties’ Notice of Proposed

Order, ECF No. 16; 3 see also Min. Order (May 12, 2025) (noting this agreement). This proposed

order made no mention of Count V, suggesting, based on the previously filed JSR, that the parties

intended to address Count V only after the filing of an administrative record.

In accord with the parties’ proposal, a briefing schedule was entered, stating, in pertinent

part, that “plaintiffs’ . . . Motion for Preliminary Injunction . . . shall be treated, pursuant to the

agreement of the parties, as a motion for partial summary judgment on Counts I through IV of

plaintiffs’ complaint.” Min. Order (May 12, 2025). The parties completed briefing in accordance

with the schedule ordered. See Defs.’ Opp’n; Pls.’ Reply. Though defendants’ opposition argued

for dismissal of the entire complaint for lack of subject matter jurisdiction and, alternatively, of

Counts I through IV on other grounds, defendants had no pending motion for any relief. On June

4, 2025, in response to the Court’s query, the parties clarified that defendants’ opposition should

be treated “as a cross-motion for summary judgment on Counts I through IV.” Parties’ Joint Status

Report at 1, ECF No. 25; Min. Order (June 4, 2025) (granting defendants’ request to treat their

3 The parties’ “[PROPOSED] SCHEDULING ORDER” stated, in full: “Upon consideration of the parties’ Joint Status Report dated May 8, 2025, it is hereby ORDERED that briefing on Plaintiffs’ Motion for a Preliminary Injunction (ECF No. 9) shall be governed by the following schedule: Defendants’ Opposition May 22 Plaintiffs’ Reply May 28[.] It is further ORDERED that the motion for a preliminary injunction shall be treated as a motion for summary judgment as to Counts I through IV of Plaintiffs’ complaint. A statement of material facts pursuant to Local Rule 7(h)(2) is not required.” Parties’ Notice of Proposed Order.

16 opposition as a partial cross-motion for summary judgment). Briefing on the parties’ pending

partial cross-motions was complete upon defendants’ filing of a reply in support of their partial

cross-motion on Counts I through IV. Defs.’ Reply in Supp. of Cross-Mot. for Summ. J. on Counts

I-IV (“Defs.’ Reply”), ECF No. 26.

A hearing was held on June 11, 2025, to consider the parties’ pending partial cross-motions

for summary judgment on Counts I through IV and, as only became clear in the briefing and not

in the parties’ JSR or proposed scheduling order, plaintiffs’ continued request for a preliminary

injunction as to Count V. See Defs.’ Opp’n at 1 (recognizing that plaintiffs maintain their claim

for preliminary injunctive relief as to Count V). These motions are now ripe for consideration.

II. APPLICABLE LEGAL STANDARDS

A. Summary Judgment

Summary judgment shall be granted “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.

56(a). A fact is only “‘material’ if a dispute over it might affect the outcome of a suit under

governing law,” meaning that “factual disputes that are ‘irrelevant or unnecessary’ do not affect

the summary judgment determination.” Mayorga v. Merdon,

(D.C. Cir. 2019)

(quoting Holcomb v. Powell,

(D.C. Cir. 2006) (quoting Anderson v. Liberty

Lobby, Inc.,

(1986))). A dispute is only “genuine” if “the evidence is such that

a reasonable jury could return a verdict for the nonmoving party.”

(citation omitted). Thus,

“[i]n considering a motion for summary judgment, judges must ask themselves not whether they

think ‘the evidence unmistakably favors one side or the other but whether a fair-minded jury could

return a verdict for the plaintiff on the evidence presented,’” because that evidence is such that

“the jury could reasonably find for the plaintiff.” Stoe v. Barr,

, 638 (D.C. Cir. 2020)

(quoting Anderson,

). 17 “Although a moving party may not be required to support its motion with affidavits, it is

still clear that summary judgment should only be granted in cases when ‘whatever is before the

district court demonstrates that the standard for the entry of summary judgment . . . is

satisfied.’” Beatty v. Wash. Metro. Area Transit Auth.,

(D.C. Cir. 1988)

(quoting Celotex Corp. v. Catrett,

(1986)). “[T]he Federal Rules of Civil

Procedure explicitly require a party opposing summary judgment to support an assertion that

a fact is genuinely disputed with materials in the record,” Oviedo v. Wash. Metro. Area Transit

Auth.,

, 396 (D.C. Cir. 2020) (citing FED. R. CIV. P. 56(c)), since otherwise

“[a]ccepting [ ] conclusory allegations as true [ ] would defeat the central purpose of the summary

judgment device, which is to weed out those cases insufficiently meritorious to warrant the expense

of a jury trial,” Greene v. Dalton,

, 675 (D.C. Cir. 1999).

When parties file cross-motions for summary judgment, each motion is considered

separately, in the light most favorable to the non-moving party, and the court must determine, for

each motion, whether the Rule 56 standard has been met. See Baylor v. Mitchell Rubenstein &

Assocs., P.C.,

(D.C. Cir. 2017) (explaining that when considering “cross-

motions for summary judgment, [courts] must accord both parties the solicitude owed non-

movants”); CEI Wash. Bureau, Inc. v. Dep’t of Justice,

(D.C. Cir. 2006) (per

curiam) (noting that “[i]t is of no moment that the parties filed cross-motions for summary

judgment and that neither party explicitly argued that there are genuine disputes about material

facts,” since “[a] cross-motion for summary judgment does not concede the factual assertions of

the opposing motion”); Sherwood v. Wash. Post,

, 1147 n.4 (D.C. Cir. 1989) (“The

rule governing cross-motions for summary judgment . . . is that neither party waives the right to a

full trial on the merits by filing its own motion; each side concedes that no material facts are at

18 issue only for the purposes of its own motion.” (quoting McKenzie v. Sawyer,

, 68 n.3

(D.C. Cir. 1982))).

Timing-wise, Rule 56 provides that “a party may file a motion for summary judgment at

any time,” FED. R. CIV. P. 56(b), “even as early as the commencement of the action,” id. 56(c)(1)

committee’s note to 2009 amendment, but “in many cases the motion will be premature until the

nonmovant has had time to file a responsive pleading or other pretrial proceedings have been had,”

id. 56(b) committee’s note to 2010 amendment. When a summary judgment motion is filed

prematurely, with factual matters or disputes insufficiently supported by record evidence in the

form required, see id. 56(c), the necessary determination of what material facts are not genuinely

at issue may be difficult to determine. In this circumstance, “the court may . . . issue any []

appropriate order.” Id. 56(e)(4).

B. Preliminary Injunction

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,

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc.,

(2008)); see also

Mazurek v. Armstrong,

(1997) (per curiam) (“[A] preliminary injunction is an

extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear

showing, carries the burden of persuasion.” (emphasis in original) (internal quotation marks

omitted)). As a result, such relief is “never awarded as of right.” Munaf v. Geren,

(2008) (quoting Yakus v. United States,

(1944)).

To obtain preliminary injunctive relief, moving parties must establish 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 the equities” is in their “favor”; and (4) “an injunction is in

the public interest.” Winter,

; see also, e.g., Clevinger v. Advocacy Holdings, Inc., 19

, 1233 (D.C. Cir. 2025); Benisek v. Lamone,

, 158 (2018). The final

two factors “merge” into one when “the Government is the opposing party,” Nken v. Holder,

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

America’s Greatness v. FEC,

(D.C. Cir. 2016) (emphasis in original).

III. DISCUSSION

Plaintiffs challenge the termination, in March 2025, of “all of ILAB’s cooperative

agreements en masse,” Compl. ¶ 3, alleging, in Count I, that defendants “exceeded” their

constitutional authority “and usurped legislative authority,” id. ¶ 71; in Counts II, III and IV, that

defendants acted contrary to law, in violation of the APA,

(2)(A), respectively, by

violating mandatory congressional appropriations provisions in the USMCA Implementation Act

and the 2021, 2022, 2023 and 2024 Appropriations Acts, when they “terminated all ongoing ILAB

projects and made clear, in repeated public statements, that they will not reallocate those funds for

the purposes specified by law,” Pls.’ Mem. at 20; see also Compl. ¶¶ 72-74; by violating the

Impoundment Control Act,

, when they “unlawfully refused to spend money

Congress appropriated in duly enacted appropriations statutes,” Pls.’ Mem. at 20; see also Compl.

¶¶ 75-80; and by violating the Anti-Deficiency Act,

(c)(1), when they created “a

temporary ‘reserve’ of appropriated funds” without lawful justification for doing so, Pls.’ Mem. at

22; see also Compl. ¶¶ 81-83; and, finally, in Count V, defendants acted arbitrarily and

capriciously, in violation of the APA, in deciding “to terminate all ILAB’s cooperative agreements,

and as a result to shut down the Bureau’s entire technical assistance program,” Pls.’ Mem. at 22;

see also Compl. ¶¶ 84-87. Plaintiffs now move for partial summary judgment and permanent

injunctive relief on Counts I through IV and preliminary injunctive relief on Count V. Pls.’ Reply

at 1-2.

20 Defendants respond that all five of plaintiffs’ claims must be dismissed for lack of subject-

matter jurisdiction, arguing that each claim is “fundamentally . . . contractual” and thus falls within

the exclusive jurisdiction of the Court of Federal Claims. Defs.’ Opp’n at 9; see also

.

Alternatively, defendants argue that they are entitled to partial summary judgment on Counts I

through IV, Defs.’ Reply at 8-16, 19, and also that preliminary injunctive relief as to Count V

should be denied, see Defs.’ Opp’n at 29-30.

The “threshold matter” of subject-matter jurisdiction, see Steel Co. v. Citizens for a Better

Env’t,

(1998), is addressed first, followed by consideration of the parties’ partial

cross-motions for summary judgment on Counts I through IV, see infra Part III.B., and then

plaintiffs’ original motion for preliminary injunctive relief only as to Count V, see infra Part III.C.

A. Subject-Matter Jurisdiction

“The United States and its agencies are generally immune from suit in federal court absent

a clear and unequivocal waiver of sovereign immunity.” Crowley Gov’t Servs., Inc. v. GSA,

, 1105 (D.C. Cir. 2022). In this case, determining whether subject-matter jurisdiction

exists over plaintiffs’ claims requires reconciling the “competing waivers” in two statutes. Am.

Near E. Refugee Aid v. USAID,

, 132 (D.D.C. 2023). First is the APA, which

waives sovereign immunity for claims against the United States “seeking relief other than money

damages” when brought by parties “adversely affected or aggrieved by agency action.”

. This waiver contains an important limitation that “if any other statute that grants consent

to suit expressly or impliedly forbids the relief which is sought” under the APA, the APA’s waiver

of sovereign immunity does not apply. Perry Cap. LLC v. Mnuchin,

(D.C. Cir.

2017) (quoting

).

Second is the Tucker Act,

(a)(1), which grants jurisdiction to the Court

of Federal Claims “to render judgment upon any claim against the United States founded . . . upon 21 any express or implied contract with the United States.”

(a)(1). The D.C. Circuit

has interpreted this provision as conferring “exclusive jurisdiction over breach of contract claims

against the United States seeking more than $10,000 in damages on the Court of Federal Claims.”

Crowley, 38 F.4th at 1106 (quoting Hammer v. United States,

, 2 (D.C. Cir. 2021)).

This grant of exclusive jurisdiction, in turn, “‘impliedly forbid[s]’ contract claims against the

Government from being brought in district court under the waiver in the APA.”

(quoting Perry

Cap.,

). In other words, if a claim falls within the Tucker Act’s jurisdiction

conferred on the Court of Federal Claims, the APA’s waiver of sovereign immunity does not apply

to that claim, and a federal district court would therefore lack subject-matter jurisdiction.

The D.C. Circuit’s “longstanding test for determining whether a claim falls within the

exclusive jurisdiction of the Claims Court pursuant to the Tucker Act” asks whether the “action

against the United States . . . is at its essence a contract claim.” Crowley, 38 F.4th at 1106

(emphasis in original) (quoting Megapulse, Inc. v. Lewis,

(D.C. Cir. 1982)). To

make this determination, a court in this Circuit must look at both “the source of the rights upon

which the plaintiff bases its claims” and “the type of relief sought (or appropriate).”

(quoting

Megapulse,

). As part of this assessment of whether the claims asserted are

essentially contract claims, no matter how artfully framed, courts may inquire whether “the Court

of Federal Claims can exercise jurisdiction over the claim” in the first place. Am. Near E. Refugee

Aid, 703 F. Supp. 3d at 132 (citing Tootle v. Sec’y of Navy,

(D.C. Cir. 2006)).

As the D.C. Circuit has explained, a federal district court cannot “be deprived of jurisdiction by

the Tucker Act when no jurisdiction lies in the Court of Federal Claims,” Tootle,

,

since “[t]here cannot be exclusive jurisdiction under the Tucker Act if there is no jurisdiction under

the Tucker Act,”

; see also Crowley, 38 F.4th at 1109 (“Because a plaintiff could not

22 bring this type of . . . action in the Claims Court in the first place, that Court would not have

exclusive jurisdiction of them.”).

Here, defendants vigorously argue that subject-matter jurisdiction is lacking because

plaintiffs’ claims reflect merely a “run-of-the-mill contract dispute between the Government and

private parties,” which must, under the Tucker Act, “be brought in the Court of Federal Claims.”

Defs.’ Reply at 1; see also id. at 2-8; Defs.’ Opp’n at 1, 9-18. Plaintiffs, on the other hand, assert

that their claims “do not concern contracts,” Pls.’ Mem. at 13, and instead “stem from the

separation of powers principle embodied in the Constitution and from federal statutes including

appropriations laws, the Impoundment Control Act, the Anti-Deficiency Act, and the arbitrary and

capricious standards of the [APA],” id. at 12. Plaintiffs have the better arguments on this

jurisdictional issue.

1. The Rights Asserted by Plaintiffs are Constitutional and Statutory

The mere fact that a case involves a contract “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.” Crowley, 38 F.4th at 1107 (ellipsis in original)

(quoting Megapulse,

). To the contrary, the D.C. Circuit has “explicitly rejected

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.’”

(quoting Megapulse,

).

a. Plaintiffs Seek Relief Based on Alleged Violations of Federal Statutes and the Constitution.

It is axiomatic that “plaintiffs are [the] ‘masters of the complaint’ with the power to bring

th[eir] claims as they see fit.” de Csepel v. Republic of Hungary,

(D.C. Cir.

2013) (quoting Caterpillar, Inc. v. Williams,

(1987)). While true that plaintiffs

23 cannot succeed merely by “artfully draft[ing]” their complaint “to circumvent the jurisdiction of

the Court of Federal Claims,” Kidwell v. Dep’t of the Army, Bd. of Corr. for Mil. Recs.,

(D.C. Cir. 1995), defendants’ “jurisdictional challenge” must be analyzed “in light of the

. . . claims the [plaintiffs] actually bring[],” de Csepel,

; see also Crowley, 38 F.4th

at 1108 (asking whether the defendant “infringed [the plaintiff]’s rights as alleged in the

complaint” (emphasis supplied)).

Here, the complaint contains five claims, each of which seeks relief based only on an

alleged statutory or constitutional violation. See generally Compl. No count claims that plaintiffs

are entitled to relief because of any term or condition of their cooperative agreements with ILAB

or any alleged breach of those agreements. Id. In fact, plaintiffs’ claims are not based on the

termination of any individual cooperative agreement, but rather the argument that the en masse

termination of the ILAB cooperative agreements was the result of a decision by the agency “to

terminate ILAB’s technical assistance program” in its entirety, Pls.’ Mem. at 1, which decision

plaintiffs allege violated both the Constitution and the relied-upon federal statutes, see generally

Compl. In other words, the rights asserted stem only from the Constitution and federal statutes,

with the result that plaintiffs can only prevail on their claims by proving that the terminations

violated the Constitution or the relied-upon federal statutes in the manner alleged, regardless of

the terms in their individual agreements. Thus, even proving a breach of the individual cooperative

agreements would not entitle plaintiffs to relief on their claims. Cf. Crowley, 38 F.4th at 1108-09

(explaining that, on the facts of that case, answering whether the defendant exceeded its statutory

authority “are not questions the district court can answer by examining a contractual promise”). 4

4 Notably, none of plaintiffs’ cooperative agreements with ILAB have been submitted as part of the record in this case by either side. See infra n.7 (describing the contents of the current record). Although defendants submitted an excerpt of the terms and conditions for one of plaintiff Solidarity Center’s cooperative agreements, see Kodiak Decl., Ex. B, Federal Award Terms and Conditions, ECF No. 19-1 at 6, this exhibit is referenced only to show the

24 Under such circumstances, where plaintiffs’ claims “do not at all depend on whether the

terms of particular awards were breached,” “it would be quite extraordinary” to find that plaintiffs’

claims are contractual. AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State,

,

137 (D.D.C. 2025); see also, e.g., Widakuswara v. Lake (“Widakuswara II”), No. 25-5144,

, at *12 (D.C. Cir. May 3, 2025) (Pillard, J., dissenting from grant of stay pending

appeal) (“What matters is what the court must examine to resolve the case: If 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.” (citing Crowley, 38 F.4th at

1109-10)), stay pending appeal vacated by

, at *1 (D.C. Cir. May 28, 2025) (en

banc) (adopting Judge Pillard’s reasoning in vacating the panel’s stay); Md. Dep’t of Hum. Res. v.

Dep’t of Health & Hum. Servs.,

(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”); Megapulse,

(cautioning that

courts “must not” interpret the Tucker Act “so broad[ly] as to deny a court jurisdiction to consider

a claim that is validly based on grounds other than a contractual relationship with the

government”); S. Educ. Found. v. U.S. Dep’t of Educ., No. 25-cv-1079 (PLF), --- F. Supp. 3d ---,

, at *7 (D.D.C. May 21, 2025) (“While a grant agreement may operate as a

contract, the Court need not look to the terms of the grant agreement at all to adjudicate [the

plaintiff’s] claims.”).

government’s authority to terminate the cooperative agreements, see Defs.’ Opp’n at 12, 21, 27, 29, and to argue the cooperative agreements provide a direct benefit to the government, see

. This reinforces the conclusion that none of the claims on which plaintiffs seek relief depend on interpreting the text of the cooperative agreements.

25 Defendants argue in opposition that “any funds disbursed to grantees like Plaintiffs are paid

solely pursuant to grant agreements (i.e., contracts), between ILAB and the grantees,” Defs.’

Opp’n at 12, and that no “statutory obligation” otherwise exists “as to specific funds owed” to

plaintiffs,

, reasoning, therefore, that plaintiffs’ claims must be contractual,

.

The problem with defendants’ reasoning is that the premises are merits arguments masquerading

as jurisdictional ones. Recall that plaintiffs are the “masters of the complaint” and may choose the

grounds on which they seek relief. de Csepel,

(quoting Caterpillar,

). The rights claimed by plaintiffs are exclusively statutory and constitutional and do not rely

on any specific term of the cooperative agreements. See generally Compl. To the extent plaintiffs

fail to prove (1) the existence of the claimed constitutional or statutory right, or (2) a violation of

such right, plaintiffs will not be entitled to relief on the corresponding claim. Any such failures to

prove the merits of their claims, however, do not “transform” plaintiffs’ statutory and

constitutional claims into contractual ones. See Crowley, 38 F.4th at 1107 (quoting Megapulse,

). As the D.C. Circuit cogently explained in Megapulse, “the jurisdictional bar of

sovereign immunity in property disputes arising from contractual relationships does not

necessarily apply where the government defendants are charged with having acted beyond the

scope of their statutory authority.”

. That is the precise circumstance here.

b. ILAB Cooperative Agreements Are Not Contracts Within the Jurisdiction of the Court of Federal Claims.

Moreover, caselaw from the Federal Circuit and Court of Federal Claims demonstrates that

those courts would not view the ILAB cooperative agreements as contracts over which the Court

of Federal Claims has exclusive jurisdiction, further supporting plaintiffs’ argument that the rights

they assert are not “essentially contractual” and subject to the exclusive jurisdiction conferred by

the Tucker Act.

26 “The Tucker Act grants the Court of Federal Claims jurisdiction over contract suits against

the United States.” Nat’l Leased Hous. Ass’n v. United States,

(Fed. Cir.

1997). To constitute a contract with the United States, an agreement must “contain[] the four

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

Antonio Hous. Auth. v. United States,

, 463 (2019); see also, e.g., Trauma Serv.

Grp. v. United States,

(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.”); St. Bernard Parish Gov’t v. United States,

(2017) (citing

City of El Centro v. United States,

(Fed. Cir. 1990)). Plaintiffs do not contest

the existence of offer, acceptance, and proper government authority but argue that the ILAB

cooperative agreements lack sufficient consideration “to constitute ‘contracts’” with the

government. Pls.’ Mem. at 13; see also Defs.’ Opp’n at 15 (correctly noting that plaintiffs

challenge only whether sufficient consideration exists and “do not dispute offer, acceptance, or

proper government authority to enter into the agreements”).

“In 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,

(ellipsis in original) (quoting Metzger, Shadyac & Schwarz v. United States,

(1987)). This required benefit to the federal government “must be ‘tangible’ and ‘direct,’

rather than ‘generalized’ or ‘incidental.’” Am. Near E. Refugee Aid, 703 F. Supp. 3d at 132

(quoting St. Bernard Parish Gov’t,

).

i. DOL Denomination as “Cooperative Agreements”

27 Federal law authorizes federal agencies to use different types of legal instruments to

establish and structure legal relationships with individuals and organizations. Two such legal

instruments are relevant to this case. First, federal agencies are directed to use procurement

contracts when “the principal purpose” of an agreement is “to acquire . . . property or services for

the direct benefit or use of the United States Government.”

(1) (emphasis

supplied). In contrast, a cooperative agreement should generally be used when “the principal

purpose of the relationship” established by the agreement “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.”

(1) (emphasis supplied). 5 By authorizing federal agencies

to use these types of agreements in different circumstances, Congress intended “to provide federal

agencies with the ‘flexibility’ to determine ‘whether a given transaction or class of transactions is

procurement or assistance.’” Hymas v. United States,

(Fed. Cir. 2016).

Despite the parties’ agreement to skip submission of any statement of undisputed material

facts in support of their respective partial cross-motions for summary judgment, among the non-

disputed material facts gleaned from the briefing is that the terminated agreements between ILAB

and plaintiffs were memorialized as cooperative agreements. See, e.g., Pls.’ Reply at 1 (describing

the agreements between plaintiffs and ILAB as “cooperative agreements”); Defs.’ Opp’n at 1

(acknowledging that the challenge in this case is to “the terminations of certain cooperative grant

5 These definitions were established in the Federal Grant and Cooperative Agreement Act of 1977 (“FGCAA”),

Stat. 3 (Feb. 3, 1978) (codified at

et seq.). In explaining the need for such legislation, Congress expressly found that a need existed “to distinguish Federal assistance relationships from Federal procurement relationships” due to “uncertainty as to the meaning of such terms as ‘contract,’ ‘grant,’ and ‘cooperative agreement’ and the relationships they reflect,” which had led to “operational inconsistencies, confusion, inefficiency, and waste for recipients of awards as well as for executive agencies.”

§ 2(a)(1)-(2), 92 Stat. at 3; see also Hymas v. United States,

(Fed. Cir. 2016) (explaining the background and purposes of the FGCAA).

28 agreements”). To be sure, an agency’s choice of instrument is not dispositive of the question

whether an agreement constitutes a contract within the meaning of the Tucker Act. See, e.g., San

Antonio Hous. Auth., 143 Fed. Cl. at 463 (noting that “any contract, including a cooperative

agreement, could fall within [the Court of Federal Claims’s] jurisdiction” if it contains the four

required elements, and thus that “cooperative agreements are not categorically excluded from this

court’s jurisdiction”); see also id. at 461-62 (citing Thermalon Indus., Ltd. v. United States,

(1995)). Yet, how the government agency classifies or denominates an

agreement has probative value in assessing the sufficiency of the consideration the agency expects

and whether such consideration is of sufficient direct benefit to the agency to qualify as a contract

for purposes of the Tucker Act. Here, the classification of plaintiffs’ agreements as “cooperative

agreements” indicates that ILAB and the Department of Labor did not view these agreements as

procuring services for the direct benefit of the government, but rather as carrying out a public

purpose through defendants’ assistance of plaintiffs’ international labor work. See Hymas,

(explaining that “[c]ourts should exercise caution” before second-guessing an

agency’s decision of which type of legal instrument to use). Thus, for example, when an agreement

was “labeled ‘Cooperative Agreement,’” the Court of Federal Claims has highlighted that label as

evidence against finding a contract within that court’s exclusive jurisdiction, St. Bernard Parish

Gov’t,

, and when an agreement was labeled a “procurement contract[],” that

label has been cited as evidence supporting a finding that a contract existed, see Anchorage v.

United States,

(2015).

ii. Defendants’ Claimed “Direct” Benefits

The labeling of the terminated ILAB agreements as cooperative agreements is probative,

but further inquiry is necessary in assessing whether these agreements provide, as defendants

29 argue, multiple “direct benefits” to the government. See Defs.’ Opp’n at 15-17. On the current

record, none of the purported direct benefits identified by defendants are sufficient to constitute

consideration and, whether considered separately or holistically, the benefits cited are too

attenuated from the primary purposes of the agreements to amount to direct benefits to DOL or the

government more generally. The benefits identified by defendants are addressed seriatim.

(a) Trade Compliance Monitoring

First, defendants assert that plaintiffs have conceded that some of their terminated

cooperative agreements “provide for and facilitate monitoring U.S. trading partners’ compliance

with trade agreement labor obligations” and “provided the Government with better enforced and

more enforceable trade partnerships by increasing transparency regarding violations.” Defs.’

Opp’n at 15 (citing Pls.’ Mem. at 26, 32). In so arguing, defendants essentially assert that, despite

the label of “cooperative agreements,” the ILAB agreements with plaintiffs functioned as contracts

for the procurement of services. See, e.g., Mots. Hr’g Tr. at 56:17-23 (defendants’ counsel

claiming that “the agency uses these services” and “if it didn’t have these services from plaintiffs,

it would have to procure them or use them in other ways from other government agencies”). 6

Defendants’ assertion finds some traction in plaintiffs’ own descriptions of their

agreements and declarations submitted by plaintiffs to support their pending motions. For

example, Thea Lee, the former Deputy Undersecretary for International Labor Affairs at DOL,

6 Despite defendants’ seeming characterization of the cooperative agreements as procurement contracts for services, defendants make no reference to the Contracts Disputes Act (“CDA”),

Stat. 2383 (Nov. 1, 1978), though this statute “applies to any express or implied contract . . . made by an executive agency for,” among other things, “the procurement of services,”

(a), (a)(2), and “the Tucker Act, in conjunction with the CDA, purports to make the Court of Federal Claims the exclusive trial court for hearing disputes over government contracts that fall under the CDA,” Tex. Health Choice, L.C. v. OPM,

(Fed. Cir. 2005) (quoting Quality Tooling, Inc. v. United States,

(Fed. Cir. 1995)). See Mots. Hr’g Tr. at 52:4-17 (defendants’ counsel acknowledging that the CDA was not raised). At the same time, plaintiffs did not comment on defendants’ omission of any reference to, or reliance on, the CDA in briefing or at the hearing by way of countering defendants’ characterization of the cooperative agreements as providing monitoring services to the government. See id. at 8:7-19 (plaintiffs’ counsel acknowledging that no reference to the CDA was made).

30 who led ILAB from May 2021 to January 2025, describes ILAB’s work as “critical to enforcement

of the Uyghur Forced Labor Prevention Act and the [USMCA], as well as other bilateral and

regional trade agreements and unilateral preference programs.” Pls.’ Mot., Ex. 5, Decl. of Thea

Lee, former Deputy Undersecretary for International Labor Affairs, U.S. Department of Labor

(“Lee Decl.”) ¶¶ 1, 3, ECF No. 9-5. Likewise, plaintiffs describe ILAB-funded projects as

intended to “make America stronger and more prosperous by, among other things, ‘ensur[ing]

workers and businesses in the United States are not put at a competitive disadvantage’ when other

countries ignore their labor commitments,” Pls.’ Mem. at 26 (alteration in original) (quoting S.

REP. NO. 118-84, at 31), and “benefit American policy interests by helping to ensure that U.S.

trade partners are complying with their obligations under negotiated trade agreements,” id. at 32.

Read in context, however, defendants overread plaintiffs’ descriptions about the

importance of ILAB’s funding of cooperative agreements for the provision of technical assistance

programs as amounting to providing monitoring services on foreign countries’ compliance with

United States multi-lateral and bi-lateral trade agreements. Plaintiffs’ descriptions are certainly

not concessions that plaintiffs were engaged in procured monitoring work on behalf of the U.S.

government, as defendants suggest. See Defs.’ Opp’n at 15. Instead, plaintiffs argue throughout

their briefing that their work helps support U.S. interests by “promot[ing] respect for labor rights

and improv[ing] working conditions around the world.” Pls.’ Mem. at 1. These characterizations

are consistent with how the Senate Appropriations Committee described ILAB’s cooperative

agreement programs in a report accompanying the 2024 Appropriations Act. S. REP. NO. 118-84,

at 31 (describing ILAB’s technical assistance programs as helping “improve working conditions

and labor standards for workers around the world”). Taken together, plaintiffs’ arguments are

more fairly read as claiming that plaintiffs’ projects help achieve compliance with trade obligations

31 by improving working standards and respect for labor rights. These efforts help ensure countries

have the tools and capacity to live up to labor commitments in trade agreements, a task that is

important but far different from conducting monitoring on how well the countries are fulfilling

specific trade agreement commitments. See, e.g., Pls.’ Mem. at 5 (describing plaintiff Solidarity

Center’s projects to “improve working conditions and respect for workers’ rights in key export

industries in Central America; combat unsafe working conditions in Bangladesh’s garment,

shrimp, and construction sectors; and build both state and union capacity in Mexico”); id. at 8

(referencing “partnerships with governments, unions, universities, and community organizations

around the globe”); id. at 9 (describing plaintiff AIR’s work to “provide training for government

staff, unions, and workers, and to complete crucial upgrades to various electronic systems” in

Mexico). That plaintiffs described these technical assistance and capacity-building efforts as

important in helping ensure other countries’ compliance with their trade commitments does not

amount to a concession that plaintiffs were engaged in monitoring compliance with those

commitments. See also Mots. Hr’g Tr. at 14:14-16 (plaintiffs’ counsel arguing defendants’

concession claim “misconstrues the nature of the program here and the nature of the types of

projects that are at issue”).

The context of the Lee Declaration is similarly important, revealing that the statement

discussing ILAB’s work as “critical to enforcement” of U.S. trade agreements described the efforts

of ILAB generally and was not specific to ILAB-funded projects or plaintiffs’ cooperative

agreements. Lee Decl. ¶ 3 (describing “ILAB’s work” as “critical to enforcement” of various trade

agreements). Instead, in the declaration’s description of the work of ILAB awardees, Lee explains

that the awards given through cooperative agreements “support technical assistance projects

addressing child labor and other workers’ rights issues,” id. ¶ 4, and “respond to critical labor

32 issues around the world,” id. ¶ 5. Examples of such projects include efforts in the wake of the

USMCA to “support Mexico’s compliance with the labor requirements of the trade agreement,”

id. ¶ 7; see also Pls.’ Mem. at 5, 9 (discussing plaintiffs’ capacity-building, training, and other

labor rights work in Mexico), and child labor and forced labor surveys, the information from which

was used by “[t]he governments of Ghana and Cote d’Ivoire . . . to develop and implement national

Child Labor Action Plans to address child labor in the cocoa, fishing, and agriculture sectors,” Lee

Decl. ¶ 10. Supporting improved working conditions in foreign trading countries is far different

from monitoring compliance with trade agreements, and nowhere does Lee state or suggest that

awardees of the cooperative agreements generally, or plaintiffs specifically, were tasked with trade

agreement compliance monitoring on behalf of the U.S. government, see generally id.

Moreover, defendants’ assertion that the government “would have to procure . . . from

other government agencies” the services provided by plaintiffs, Mots. Hr’g Tr. at 56:17-20,

appears to be unfounded. The government had no specific obligation, under either the USMCA

Trade Agreement or USMCA Implementation Act or congressional appropriations statutes, to

provide services to workers “in Bangladesh’s garment, shrimp, and construction sectors,” Pls.’

Mem. at 5, or “at a tire plant in Mexico,” id. at 9, or to any of the other beneficiaries of plaintiffs’

ILAB-funded projects. As the Court of Federal Claims has explained, an agency “is acquiring [an]

intermediary’s services for its own direct benefit or use if the agency otherwise would have to use

its own staff to provide to beneficiaries the services offered by the intermediary,” while “an agency

is obtaining services for a public purpose if the agency is charged with providing support or

assistance to intermediaries as opposed to the final beneficiaries.” 360Training.com, Inc. v. United

States,

(2012) (citing GAO Office of General Counsel, Principles of Federal

Appropriations Law, Vol. 2, Ch. 10 (3d ed. Feb. 2006)). Here, the appropriations statutes under

33 which ILAB entered the terminated cooperative agreements plainly fall into the latter category,

directing the agency to provide support to organizations running certain types of programs—i.e.,

organizations that are intermediaries like plaintiffs—rather than requiring ILAB to support any

particular foreign workers as the direct beneficiaries of such programs. See, e.g., 2024

Appropriations Act, 138 Stat. at 641 (directing ILAB to use funds to support “programs to combat

exploitative child labor internationally” and “model programs that address worker rights issues

through technical assistance”); USMCA Implementation Act, 134 Stat. at 100 (directing ILAB to

provide funding “to support worker-focused capacity building, efforts to reduce workplace

discrimination in Mexico, efforts to reduce child labor and forced labor in Mexico, efforts to reduce

human trafficking, efforts to reduce child exploitation, and other efforts related to implementation

of the USMCA”).

On the current record, defendants’ claim that plaintiffs engaged in monitoring of trade

agreement compliance cannot constitute consideration within the meaning of the Tucker Act.

(b) Other Claimed “Direct” Benefits

Defendants baldly state that the achievement of “broader policy aims . . . through grant

agreements are sufficient consideration” to trigger Tucker Act jurisdiction in the Court of Federal

Claims. Defs.’ Opp’n at 16. This is incorrect. The Federal Circuit has made clear that merely

because an agreement “indirectly benefit[s]” an agency by “advanc[ing] the agency’s overall

mission,” is insufficient to establish consideration. Hymas,

; see also Purpose

Built Fams. Found., Inc. v. United States,

, 718 (2023) (“That the agreements

indirectly benefit the VA by furthering its mission of reducing homelessness among veterans does

not render the agreements procurement contracts.”). As the Federal Circuit has concluded, holding

otherwise would risk turning all cooperative agreements into contracts, since “nearly all

34 cooperative agreements” advance some government agency’s “overall mission,” Hymas, 810 F.3d

at 1328—that is, after all, why the government enters into such agreements in the first place. This

indirect benefit to the government, therefore, does not constitute consideration.

Defendants press on to find adequate consideration to DOL, claiming next that the

government received “knowledge and information regarding the success of ILAB projects” that

would help ILAB “better understand what makes certain projects successful and utilize its

resources more effectively going forward.” Defs.’ Opp’n at 15. This strained effort is similarly

unsuccessful. Such potential future government savings are too speculative to constitute a “direct”

and “tangible” benefit to the government. See, e.g., St. Bernard Parish,

, 735-

36 (finding, in a case involving a cooperative agreement to provide money to a Louisiana parish

to help alleviate flood risks after Hurricane Katrina, that “a reduction in the amount of emergency

funds that the Government would spend in future flooding emergencies” was “not the kind of

direct benefit . . . that would support the finding” of consideration, because this benefit was only

“incidental” and “generalized”). Indeed, the government could argue that every cooperative

agreement provides “knowledge and information” about project success and resource allocation,

Defs.’ Opp’n at 15, meaning that accepting this argument as sufficient for consideration would

risk turning all cooperative agreements into contracts under the Tucker Act, precisely the outcome

rejected by the Federal Circuit, see Hymas,

(relying in part on this concern in

rejecting an indirect benefit as insufficient for consideration). Without identifying specific

information provided pursuant to the agreements that produced some tangible benefit to the

government, these claimed benefits can only be described as generalized, indirect, and speculative.

Nor do the cooperative agreements’ Buy American and Fly American requirements, see

Defs.’ Opp’n at 16, provide the required direct and tangible benefit to the government to constitute

35 consideration. Defendants argue that these clauses would “benefit the Government through any

federal taxes paid on such products or airfares, as well as increasing the revenue of U.S. businesses

in ways that may further increase revenues to the Government.”

As this language makes clear,

however, any such benefits would accrue only through an attenuated chain of events, requiring the

payment of indeterminate taxes on hypothetical future purchases and the possible collection of

increased tax revenue from theoretical increases in U.S. business revenue—in other words, on the

record in this case, possible indirect and currently intangible benefits amounting to no more than

“[s]peculation,” Pls.’ Reply at 10. As to the “royalty-free rights to media created by the

grantee[s],” Defs.’ Opp’n at 16, defendants offer no evidence that these rights have any, much less

significant, value, see Pls.’ Reply at 10—easily distinguishing them from defendants’ citation to

Thermalon Industries, see Defs.’ Opp’n at 16 (arguing the grant of royalty-free rights is similar to

those granted in Thermalon Industries), where the rights at issue “potentially had significant

economic value,”

; see also Pls.’ Reply at 10 (making this point).

In short, plaintiffs’ cooperative agreements do not provide the direct and tangible benefit

to ILAB, DOL or the government to qualify as consideration for a contract to fall within the

jurisdictional confines of the Tucker Act. For all these reasons, the rights claimed by plaintiffs in

this case are not “essentially contractual” and do not belong in the Court of Federal Claims.

2. The Relief Sought is Not Contractual

As relief for the claimed violations, plaintiffs seek an injunction “[v]acat[ing] Defendants’

ILAB termination notices” and “order[ing] reinstatement” of all ILAB cooperative agreements

terminated between March 13 and March 27, 2025. Compl. at 24; Pls.’ Mem. at 1. This remedy

resembles neither “the ‘explicitly contractual remedy’ of specific performance” nor “the

36 ‘prototypical contract remedy’ of money damages—the two “types of relief that are ‘specific to

actions that sound in contract.’” Crowley, 38 F.4th at 1107 (quoting Perry Cap.,

).

Consider money damages first. As the Supreme Court has explained, money damages

“provide relief that substitutes for that which ought to have been done.” Bowen v. Massachusetts,

(1988); see also Md. Dep’t of Hum. Res.,

(describing money

damages as “money in compensation for the losses . . . that [the plaintiff] will suffer or has

suffered”). In the instant case, plaintiffs do not seek any monetary award to compensate them for

any alleged losses they have already experienced or may suffer in the future. See Mots. Hr’g Tr.

at 11:12-23 (plaintiffs’ counsel explaining that plaintiffs “don’t have any request[s]” for “payment

for services already rendered [or] requests to draw down on . . . grant funds for things

that . . . already happened”); see generally Compl. Instead, they seek “prospective, nonmonetary

relief to clarify future obligations,” Me. Cmty. Health v. United States,

, 327 (2020)—

here, the vacatur of the cooperative agreement terminations and reinstatement of the agreements

on a forward-looking basis, Compl. at 24. The fact that such relief, if granted, might result in the

government paying money to plaintiffs does not change the character of the relief sought. As the

Supreme Court has “long recognized,” 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,

; see also Dep’t of Educ. v. California,

, 968 (2025) (per

curiam) (“[A] district court’s jurisdiction ‘is not barred by the possibility’ that an order setting

aside an agency’s action may result in the disbursement of funds.” (quoting Bowen,

)).

Nor is the relief sought by plaintiffs merely “an order requiring specific performance” of

the cooperative agreements, as defendants argue. Defs.’ Opp’n at 2. The equitable remedy of

37 specific performance “is available only to protect contract rights.” 71 Am. Jur. 2d Specific

Performance § 1 (2025). As a result, such an order is not granted “unless there has been a breach

of contract,” or, “[i]n unusual circumstances, . . . merely a threatened breach.” Restatement

(Second) of Contracts § 357 cmt. a (Am. L. Inst. 1981); see also 71 Am. Jur. 2d Specific

Performance § 1 (“[A] decree of specific performance is designed to remedy a past breach of

contract.”). In the instant case, however, as already discussed, plaintiffs do not allege a breach of

contract or seek relief on any contractual basis, supra Part III.A.1.a.; see generally Compl., and

thus no remedy for breach of contract could be issued in this case.

Instead, plaintiffs allege that defendants’ termination of ILAB cooperative agreements

violated the Constitution and various federal statutes and seek vacatur of the cooperative

agreement terminations on that basis. See Compl. at 21-24 (Counts I-V and Prayer for Relief). As

the D.C. Circuit recently explained, “[v]acatur is the normal remedy when [courts] are faced with

unsustainable agency action.” N.J. Conservation Found. v. FERC,

, 63 (D.C. Cir.

2024) (internal quotation marks omitted) (quoting Bhd. of Locomotive Eng’rs & Trainmen v. Fed.

R.R. Admin,

, 117 (D.C. Cir. 2020)); see also, e.g., Dep’t of Com. v. New York,

, 788-89 (2019) (Thomas, J., joined by Gorsuch, J., and Kavanaugh, J., concurring in part

and dissenting in part) (“[T]he APA requires courts to ‘hold unlawful and set aside’ agency action

that is ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’”

(quoting

(2)(A))); S. Educ. Found.,

, at *7 (noting that setting

aside unlawful agency action “is ‘precisely the relief that is afforded—indeed, required—by and

routinely granted under the APA.’” (quoting AIDS Vaccine Advoc. Coal., 770 F. Supp. 3d at 135)).

That the allegedly unlawful action plaintiffs ask to be “set aside” in this case is the termination of

cooperative agreements does not transform this normal APA remedy into specific performance.

38 “[S]o long as an action brought against the United States or an agency thereof is not one that should

be classified from the outset as a ‘contract action’ for Tucker Act purposes,” the remedies sought

“are also not contract-related, and the mere fact that an injunction would require the same

government restraint that specific (non)performance might require in a contract setting is an

insufficient basis to deny a district court the jurisdiction otherwise available and the remedial

powers otherwise appropriate.” Megapulse,

.

Moreover, “[t]he type of relief plaintiffs seek is unavailable in the Court of Federal Claims,

which ‘has no power to grant equitable relief.’” Widakuswara II,

, at *13

(Pillard, J., dissenting) (quoting Bowen,

). “The Court of Federal Claims’ lack of

authority to address” plaintiffs’ requests for declaratory and injunctive relief “underscores why it

is not the appropriate court” to hear plaintiffs’ claims.

(citing Crowley, 38 F.4th at 1109; Nat’l

Ctr. for Mfg. Scis. v. United States,

, 201 (Fed. Cir. 1997)).

Again, whether plaintiffs have shown they are entitled to vacatur of the ILAB termination

letters is a merits issue. What matters for the jurisdictional inquiry is that, in seeking the remedy

of vacatur, plaintiffs have sought a remedy distinct from specific performance and “not specific to

actions that sound in contract.” Crowley, 38 F.4th at 1110 (quoting Perry Cap.,

);

see also AIDS Vaccine Advoc. Coal., 770 F. Supp. 3d at 137 (“The critical point is that here

Plaintiffs assert APA claims to invalidate agency [action], regardless of any breach of any

agreement or the extent of their losses.”); Kidwell,

(“[A]s long as the plaintiff’s

complaint only requests non-monetary relief that has ‘considerable value’ independent of any

future potential for monetary relief . . . we respect the plaintiff’s choice of remedies and treat the

complaint as something more than an artfully drafted effort to circumvent the jurisdiction of the

Court of Federal Claims.” (internal citations omitted)).

39 3. Recent Supreme Court Emergency Docket Decisions

Finally, defendants contend that the Supreme Court’s recent emergency docket decision in

Department of Education v. California,

, is “dispositive” of the Court of Federal

Claims’ jurisdiction over plaintiffs’ claims in this case. Defs.’ Opp’n at 1. In that case, the

Supreme Court stayed, pending appeal, a district court order “enjoining the Government from

terminating various education-related grants,” finding that the government was likely to succeed

on the claim that the district court lacked jurisdiction to grant such relief. California, 145 S. Ct. at

968. In particular, the Supreme Court explained that the district court’s order amounted to an

“order[] ‘to enforce a contractual obligation to pay money,’” which fell within the exclusive

jurisdiction of the Court of Federal Claims under the Tucker Act. Id. (quoting Great-West Life &

Annuity Ins. Co. v. Knudson,

(2002)).

California does not control the jurisdictional issue raised in this case for at least three

reasons. First, in California, the Supreme Court was confronted with the First Circuit’s factual

determination that “the terms and conditions of each individual grant award [were] at issue” in the

case. California v. Dep’t of Educ.,

, 96-97 (1st Cir. 2025). The appellate court’s

reliance on the terms of the contracts underlying the claims in that case might explain why the

Supreme Court, while explicitly recognizing that “a district court’s jurisdiction ‘is not barred by

the possibility’ that an order setting aside an agency’s action may result in the disbursement of

funds,” California, 145 S. Ct. at 968 (quoting Bowen,

), nevertheless found that the

district court’s order in California was essentially one to “enforce a contractual obligation to pay

money,”

(citation omitted). In contrast, in the instant case, plaintiffs do not seek to enforce any

contractual obligations, since their claims do not depend on any term or condition of the

cooperative agreements. See supra Part III.A.1.a., n.4; Crowley, 38 F.4th at 1109 (finding that the

40 claims at issue were not essentially contractual where, in part, they could not be resolved by

“examining a contractual promise”).

Second, the Supreme Court’s order in California was issued to resolve an emergency

application for a stay pending appeal and does not displace decades of binding Supreme Court and

D.C. Circuit precedent governing the Tucker Act jurisdictional inquiry. Cf. S. Educ. Found.,

, at *9 (“[T]he Supreme Court’s stay order . . . does not displace governing law.”);

Climate United Fund v. Citibank, N.A., No. 25-cv-698 (TSC), --- F. Supp. 3d ---,

, at *11 (D.D.C. Apr. 16, 2025) (noting the Supreme Court’s reliance on Bowen,

, and applying Bowen’s jurisdiction analysis); New York v. Trump, No. 25-cv-39,

, at *2 (D.R.I. Apr. 14, 2025) (noting that Bowen remains “the guiding compass”).

Applying Bowen and other binding precedents to the facts and circumstances of this case

demonstrates that this Court has subject-matter jurisdiction to hear plaintiffs’ claims. See supra

Parts III.A.1-2.

In any event, “[t]o the extent that the Supreme Court’s action on emergency stay orders

influences how [courts] apply[] binding precedent” from the Supreme Court and D.C. Circuit, the

claims in the instant case are more analogous to those in AIDS Vaccine Advocacy Coalition,

(2025), where the Supreme Court, again addressing an emergency docket motion by the

government, declined to stay the interim injunctive relief granted by the district court despite the

government’s assertion that the claims belonged in the Court of Federal Claims, than to the claims

at issue in California. Widakuswara II,

, at *14 (Pillard, J., dissenting) (making

the same point). Notably, as Judge Pillard explained in dissent from the emergency panel decision

granting a stay pending appeal in Widakuswara that was subsequently reversed by the en banc

D.C. Circuit, see generally

the plaintiffs in AIDS Vaccine Advocacy Coalition:

41 claimed a right to be free from government action—the wholesale termination of the plaintiffs’ grant funding—they claimed exceeded the authority conferred by statute and the Constitution. As here, their claims did not depend on whether their contracts were breached, but on whether the agency’s policy directives were unlawful in the face of federal statutes appropriating funds for specific purposes.

(explaining the denial of the stay motion in AIDS Vaccine Advocacy Coalition). This

description applies word for word to the claims raised by plaintiffs in this case. See supra Part

III.A.1.a. Thus, analysis of the Supreme Court’s recent emergency docket actions is another factor

favoring the conclusion that subject-matter jurisdiction exists for plaintiffs’ claims. See

Widakuswara II,

, at *14 (Pillard, J., dissenting) (“To the extent that the

Supreme Court’s action on emergency stay orders influences how we apply binding precedent of

that court and this one, it favors denying the stay here as in AIDS Vaccine Advocacy Coalition.”).

***

In sum, plaintiffs’ claims are not contract claims against the federal government within the

exclusive jurisdiction of the Court of Federal Claims, and subject-matter jurisdiction may therefore

be exercised by this Court to consider the merits of plaintiffs’ claims.

B. Partial Summary Judgment (Counts I through IV)

Turning to the merits, the parties’ partial cross-motions for summary judgment on Counts

I through IV of the complaint will be considered next. Recall that these four claims challenge the

termination of “all of ILAB’s cooperative agreements and making it impossible for ILAB to fulfill

Congress’s mandate,” Compl. ¶ 71, first, on the constitutional ground that this agency action was

ultra vires, in violation of the separation of powers, by failing to comply with legislative directions

in the USMCA Implementation Act and FY 2021 through 2024 DOL Appropriations Acts to

“implement[] programs that combat child labor and address workers’ rights issues in U.S. trading

partner countries” and “spend a minimum amount on” those priorities (Count I),

; see

42 ¶¶ 69-71, and, second, that this action was “not in accordance with law,” under the APA, but

instead violated statutory requirements established in the USMCA Implementation Act and the FY

2021 through 2024 DOL Appropriations Acts (Count II), the Impoundment Control Act (Count

III), and the Anti-Deficiency Act (Count IV), see

.

The evidentiary record attached as exhibits in support of the parties’ cross-motions is spare

in both volume and relevant material facts. This is not helpful in identifying whether disputes of

fact are present, let alone whether those disputes are genuine or relate to material facts. 7 The

parties did not submit a statement of undisputed or disputed material facts that would have assisted

in clarifying whether either side satisfied the applicable standard for summary judgment, under

Federal Rule of Civil Procedure 56. See Parties’ Notice of Proposed Order (stating that “[a]

statement of material facts pursuant to Local Rule 7(h)(2) is not required”); Min. Order (May 12,

2025) (noting the agreement of the parties that no “statement of material facts is necessary, as

otherwise required under D.D.C. Local Rule 7(h)(2)”). The current record does not identify basic

information regarding the total number of ILAB cooperative agreements for which plaintiffs seek

relief or confirming that all of these ILAB cooperative agreements had in fact, as alleged, been

terminated within the same timeframe and for the same reason given to plaintiffs in their

7 The exhibits submitted by both sides total less than 100 pages. Plaintiffs submitted 73 pages and defendants submitted 21 pages. Plaintiffs’ submissions include (1) four declarations, including one from each plaintiff organization and the former head of ILAB, see Bader-Blau Decl.; Seidenfeld Decl.; Dubbelt Decl.; Lee Decl.; (2) the termination letters for each of plaintiffs’ cooperative agreements, see Solidarity Center Termination Letters; AIR Termination Letters; Global March Termination Letter; (3) a copy of one post from the social media site X, posted by the official account of Labor Secretary Chavez-DeRemer, March 26 Chavez-DeRemer Post; and (4) an interim evaluation of Global March’s ILAB-funded project, published in January 2025, Dubbelt Decl., Ex. A., Interim Evaluation, ECF No. 9-4 at 8. Defendants, meanwhile, have submitted one declaration from the Administrator of DOL’s office of grant management, see Kodiak Decl., as well as a copy of the termination guidance sent to plaintiffs in May 2025, see DOL Termination Guidance, and an excerpt of the terms and conditions of the Solidarity Center’s award for work in the Republic of Georgia, see Kodiak Decl., Ex. B, Federal Award Terms and Conditions, ECF No. 19-1 at 6.

43 termination letters, as opposed to some other reason, e.g., for illegal or other misconduct,

warranting termination.

The holes in the current record are fatal to the parties’ partial motions for summary

judgment. Given the uncertainty that still shrouds key questions in this case, neither side can show

they are “entitled to judgment as a matter of law,” FED. R. CIV. P. 56(a), and thus the parties’ partial

cross-motions for summary judgment are denied.

1. APA Claim for Violation of Impoundment Control Act Is Not Precluded

Before turning to the merits of the pending summary judgment motions, defendants raise

a threshold issue as to whether plaintiffs may bring an APA challenge for an alleged violation of

the Impoundment Control Act, as claimed in Count III. According to defendants, the

Impoundment Control Act “provides for enforcement [only] by the Comptroller General” and “not

private parties.” Defs.’ Opp’n at 27 (citing

). By its terms, the APA

“applies . . . except to the extent that . . . [other] statutes preclude judicial review,”

(a), (a)(1), because “Congress did not intend the general grant of review in the APA to

duplicate existing procedures for review of agency action,” Bowen,

. As a result,

when “Congress has provided special and adequate review procedures” for a claim through other

means,

(citation omitted), that alternative means for pursuing a remedy will “oust a district

court of its normal jurisdiction under the APA,”

.

Here, defendants argue that the Impoundment Control Act provides such an adequate

alternative review procedure by authorizing the Comptroller General to bring civil actions to

enforce the law. Defs.’ Reply at 12 (citing

; Bowen,

); Defs.’ Opp’n

at 27. As support for this proposition defendants rely on Bowen, but that case is inapposite. There,

the Supreme Court explained that “[a]t the time the APA was enacted, a number of statutes creating

44 administrative agencies defined the specific procedures to be followed in reviewing a particular

agency’s action,” citing as examples provisions establishing that “Federal Trade Commission and

National Labor Relations Board orders were directly reviewable in the regional courts of appeals,

and Interstate Commerce Commission orders were subject to review in specially constituted three-

judge district courts.”

. Where such a provision exists, plaintiffs could not merely

sue in a district court but were bound to follow the specific procedures when challenging actions

of those agencies subject to them. Yet, unlike the examples provided in Bowen of statutory special

procedures for suit, no such statutorily-prescribed procedures are provided to funnel private claims

challenging an agency’s action in violation of the Impoundment Control Act.

Merely because Congress expressly provided a role and process for the Comptroller

General to address perceived violations of that statute on behalf of the Congress does not operate

more broadly, as defendants urge, to foreclose private parties from seeking review of agency action

for violating the same statute under the APA. If defendants were correct, as plaintiffs point out,

“Plaintiffs [would] have no remedy” for their alleged injuries under the Impoundment Control

Act—and this precise situation meets the APA prerequisite that no other adequate remedy exists

through another specially designated judicial process. Pls.’ Reply at 16 (emphasis in original).

To the extent defendants are attempting to argue that APA review is impliedly precluded

by the Impoundment Control Act due to the role provided by the Comptroller General, this

argument is unpersuasive. “Whether and to what extent a particular statute precludes judicial

review is determined not only from its express language, but also from the structure of the statutory

scheme, its objectives, its legislative history, and the nature of the administrative action involved.”

Block, 467 U.S. at 345; id. at 348 (finding preclusive intent is “clear” in the operation of a “complex

and delicate administrative scheme”). As the D.C. Circuit has explained, “[a]ny preclusion must

45 be ‘fairly discernible in the statutory scheme’ and must appear ‘with sufficient clarity to overcome

the strong presumption in favor of judicial review.’” Confederated Tribes of the Chehalis

Reservation v. Mnuchin,

, 21 (D.C. Cir. 2020) (quoting first Block, 467 U.S. at 345,

and then Thryv, Inc. v. Click-to-Call Techs., LP,

, 53 (2020)), rev’d on other grounds

sub nom. Yellen v. Confederated Tribes of the Chehalis Reservation,

(2021).

Defendants have provided little analysis to support any conclusion as to the intent to preclude

judicial review of claimed Impoundment Control Act violations under the APA. See generally

Defs.’ Opp’n; Defs.’ Reply. To repeat, the mere fact that the Impoundment Control Act

affirmatively empowers the Comptroller General to sue is not sufficient to overcome the “strong

presumption” in favor of review under the APA. Accord AIDS Vaccine Advoc. Coal., 770 F. Supp.

3d at 148 n.17. Accordingly, Count III’s claim that defendants’ actions were contrary to law, under

the APA, by violating the Impoundment Control Act will be considered on the merits along with

Counts II and IV.

2. Plaintiffs’ “Contrary to Law” APA Claims: Counts II, III, and IV

Both sides agree that all ILAB cooperative agreements were terminated in March 2025.

See Pls.’ Mem. at 6; Mots. Hr’g Tr. at 43:18-44:5 (defendants’ counsel conceding as much). The

parties disagree, however, about facts crucial to the resolution of the APA claims in Counts II, III,

and IV, including (1) the nature of the process by which DOL terminated all ILAB cooperative

agreements; (2) whether DOL and its components intend to spend the funds appropriated to the

ILAB for cooperative agreement programs for the purposes and in the minimum amounts

statutorily required; and (3) whether efforts are underway by the agency to meet those legal

requirements, if they have not already been met.

Plaintiffs challenge what they characterize as “DOL’s decision to terminate all ILAB

cooperative agreements,” Pls.’ Mem. at 6, and thus “to terminate ILAB’s technical assistance 46 program in its entirety, id. at 1, due to a “policy disagreement” with the program, Compl. ¶ 74; see

also Pls.’ Mem. at 22; Mots. Hr’g Tr. at 70:14-16 (plaintiffs’ counsel explaining “we conceive of

this case as . . . the unlawful agency action is the elimination of all ILAB programming”). As part

of that decision, plaintiffs allege that defendants have unlawfully “refused to spend” the money

that Congress appropriated to ILAB, Pls.’ Mem. at 22; see also, e.g., id. at 17 (same), and thus

failed to comply with the statutory requirements “to spend a minimum amount on” the priorities

set out in the USMCA Implementation Act and the FY 2021-2024 Appropriations Acts, Compl.

¶¶ 70, 73.

In briefing and at the motions hearing, defendants challenge the factual accuracy of

plaintiffs’ allegations as to the agency’s actions underlying the theory for each claim asserted.

First, defendants argue that each ILAB cooperative agreement was “terminated individually,”

Mots. Hr’g Tr. at 46:2-6, rather than “en masse” as alleged by plaintiffs, Compl. ¶ 3, and,

second, that these terminations did not represent an effort to shutter the ILAB technical

assistance program entirely, Defs.’ Opp’n at 30 n.10, but were based upon a determination that

each agreement was not aligned with how the new Administration views the goals of the

program, Defs.’ Reply at 14 (claiming that ILAB made decisions to “terminate individual grants

upon developing serious concerns about their alignment with agency priorities”). In other words,

according to defendants, the termination of the cooperative agreements was not due to a policy

disagreement with Congress but rather with each cooperative agreement in terms of how those

extant agreements were intended to achieve the legislative goals. 8

8 Defendants argue that plaintiffs’ framing of the case creates a “standing problem” for plaintiffs. Defs.’ Reply at 11; see also Defs.’ Opp’n at 30 n.10. While not challenging plaintiffs’ standing to bring APA claims in connection with their own fifteen terminated cooperative agreements, defendants urge that “Plaintiffs lack standing as to other grantee’s [sic] termination decisions.” Defs.’ Opp’n at 30 n.10; see also id. at 35-36 (discussing the scope of relief plaintiffs could receive if successful in this litigation). This framing of the issue presupposes that defendants are correct as a factual matter that each grant termination resulted from an individual agency decision. See id. at 30 n.10 (stating as fact, without backup with any sworn declaration or other admissible evidence, that “the

47 Second, defendants dispute plaintiffs’ allegation that the agency does not intend to spend

the funds appropriated to ILAB. Instead, defendants posit that not only were the terminations of

the ILAB cooperative agreements lawful, but also that at least some of the remaining funds from

those terminated agreements may not be spent because the agency is legally prohibited from

reallocating funds for which the authorizations have expired. See Defs.’ Opp’n at 27 (“Plaintiffs

conflate two separate, yet lawful, steps. . . . First, ILAB canceled grant agreements. Second, a

statute then prohibited the agency from creating new, untimely obligations of the same funds under

the expired appropriations.”). Plaintiffs seemingly agree with defendants that “the authorizations

to obligate funds in past appropriations bills have expired, except for the most recent continuing

resolution,” and that funds for which authorizations have expired cannot be reallocated. See Pls.’

Mem. at 20. As to funds for which authorizations remain active, defendants’ counsel represented

that “the agency’s intention is to reallocate” eligible ILAB funds “to alternative programs or grants

that would be in accord with the agency’s priorities.” Mots. Hr’g Tr. at 62:9-13.

Exactly which funds or the amount of such funds that would be available for ILAB and

DOL to reallocate is not clear from the current record. For instance, two of plaintiffs’ terminated

agency . . . rendered individual termination decisions as to each grant agreement, so each is a discrete agency action”). That is not plaintiffs’ theory of the case, however. Plaintiffs instead argue that the final agency action being challenged is defendants’ over-arching decision to close down ILAB’s technical assistance program funding abroad, resulting in termination of all ILAB cooperative agreements, and the claimed harms to plaintiffs. If plaintiffs are correct, they may challenge that decision, in its entirety, as unlawful. See, e.g., Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,

(D.C. Cir. 1998) (“The Administrative Procedure Act permits suit to be brought by any person ‘adversely affected or aggrieved by agency action.’ In some cases the ‘agency action’ will consist of a rule of broad applicability; and if the plaintiff prevails, the result is that the rule is invalidated, not simply that the court forbids its application to a particular individual. Under these circumstances a single plaintiff, so long as he is injured by the rule, may obtain ‘programmatic’ relief that affects the rights of parties not before the court.” (quoting Lujan v. Nat’l Wildlife Federation,

(1990) (Blackmun, J., dissenting))); see also

(noting that the quoted portion, although in dissent, was “apparently expressing the views of all nine Justices on this question”); Lujan,

n.2 (“If there is in fact some specific order or regulation” that is generally applicable and “is final, . . . it can of course be challenged under the APA by a person adversely affected—and the entire [program], insofar as the content of that particular action is concerned, would thereby be affected.”). Thus, until the factual record is clearer, plaintiffs’ allegations support their claims as to all terminated ILAB cooperative agreements, and they do not have the “standing problem” defendants suggest.

48 cooperative agreements were due to end in 2025, including one in June 2025, so likely much of

the funding provided for those programs has already been spent. See Bader-Blau Decl. ¶ 10.a.

(describing a Solidarity Center project in Mexico, funded by the USMCA Implementation Act,

that originally had an end date of June 15, 2025); Dubbelt Decl. ¶ 11 (explaining that Global

March’s ILAB award was originally set to end in December 2025). The record, however, provides

no evidence to illuminate this issue. Nor is the record clear as to whether the requisite minimum

funding on specific programs has already been spent for past years across plaintiffs’ fifteen

terminated agreements or the fifty-four other terminated agreements. Nevertheless, defendants

made clear at the motions hearing—though puzzlingly neither in their briefing nor in declarations

that comport with Federal Rule of Civil Procedure 56(c)—that they dispute plaintiffs’ claim that a

decision was made not to spend any of the funds appropriated to ILAB. See Mots. Hr’g Tr. at

62:6-63:1.

To determine whether either party is entitled to summary judgment on Counts II, III and

IV, the parties’ respective positions on the factual circumstances surrounding the ILAB grant

terminations must be tested against the current factual record in this case. A party may be granted

summary judgment only if the record reveals that there “is no genuine issue of material fact” and

thus that “judgment in the movant’s favor is proper as a matter of law.” Soundboard Ass’n v. FTC,

(D.C. Cir. 2018); see also supra Part II.A. To support or oppose a motion

for summary judgment, parties must “cit[e] to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations,

stipulations . . . , admissions, interrogatory answers, or other materials,” or alternatively “show[]

that the materials cited [by an adverse party] do not establish the absence or presence of a genuine

dispute, or that an adverse party cannot produce admissible evidence to support the fact.” FED. R.

49 CIV. P. 56(c)(1)(A), (c)(1)(B). As previously discussed, where, as here, both sides move for

summary judgment, each motion must be evaluated separately to determine whether the Rule 56

standard has been satisfied. See supra Part II.A.

Consider plaintiffs’ motion first. In support of their motion for summary judgment,

plaintiffs point to three posts on the social media site X—two made by the official account of

Secretary Chavez-DeRemer and one by the official account of the Department of Labor—as

“probative of the intent in this mass termination program” and “the best evidence of what the

agency is doing and why it is doing it.” Mots. Hr’g Tr. at 67:15-24 (plaintiffs’ counsel discussing

the cited posts). Defendants strenuously oppose plaintiffs’ motion, generally in the manner

contemplated by Rule 56(c)(1)(B), by arguing that plaintiffs have not identified sufficient evidence

to establish as undisputed their version of the facts. See, e.g., id. at 65:9-66:18 (defendants’ counsel

arguing that “[t]here’s no singular [agency] decision here that [plaintiffs] identify, which is a

problem for all of their APA claims,” and further that defendants “very strongly resist . . . the

characterization of the [posts] as stating anything about purpose”); Defs.’ Reply at 11 (arguing that

plaintiffs “identify no final agency action other than the 15 grant agreement terminations alleged

in their Complaint”); Defs.’ Opp’n at 30 n.10 (arguing first that “[p]laintiffs do not clearly

articulate or provide any authority for an argument to amalgamate the termination decisions . . .

and substantively review them ‘en masse,’” and second that “the agency . . . rendered individual

termination decisions as to each grant agreement,” meaning that “each is a discrete agency

action”).

As an initial matter, only one of the posts relied on by plaintiffs was actually submitted as

support for summary judgment in the form contemplated by Rule 56, as an exhibit to a properly

sworn declaration, see March 26 Chavez-DeRemer Post, while the other two posts were cited only

50 in the unverified complaint and plaintiffs’ briefs, see Compl. ¶ 49 (quoting March 14 Chavez-

DeRemer Post); id. ¶ 55 (quoting April 1 DOL Post); Pls.’ Mem. at 7 (quoting March 14 Chavez-

DeRemer Post); Pls.’ Reply at 20 (quoting April 1 DOL Post). Though defendants did not contest

in briefing or at the motions hearing the authenticity of these online posts, they contend that, even

considering all three posts, this evidence falls well short of undisputed proof that DOL made a

blanket decision to terminate all ILAB cooperative agreements or that defendants have decided

not to reallocate appropriated funds, if legally feasible to do so. Indeed, nothing in any of the three

brief posts establishes as undisputed that all ILAB cooperative agreements were terminated, much

less that the terminations were the result of a blanket decision. Instead, the fact that the posts were

made two weeks apart, in line with the two-week period over which plaintiffs’ fifteen cooperative

agreements were terminated, see supra Part I.C. (explaining that one of the Solidarity Center’s

agreements was terminated on March 13, two more were terminated on March 14, and the

remaining twelve agreements were terminated on March 27), provides some support for

defendants’ claim that separate and individualized termination decisions were made for at least

some of the agreements. See, e.g., Ass’n for Educ. Fin. & Pol’y, Inc. v. McMahon, Nos. 25-cv-

999, 25-cv-1266 (TNM), --- F. Supp. 3d ---,

, at *7 (D.D.C. June 3, 2025)

(explaining, in a case challenging contract cancellations by an agency, that a multiple-week gap

between cancellations “indicate[d]” that plaintiffs’ claims were “improperly bundl[ed] together”

and did not challenge one “circumscribed and discrete [agency] action” (alteration accepted;

citation omitted)). Still unclear from the current record is when in March 2025 the cooperative

agreements held by awardees other than plaintiffs were terminated, for what reason, and following

what process, see Mots. Hr’g Tr. at 43:21-23 (defendants’ counsel conceding only that all ILAB

cooperative agreements were terminated “[i]n March”), which information could better inform

51 which side’s characterization of the agency action at issue is more accurate. The closer in time,

combined with similarity in process and reasons given for the terminations, the more plausible is

plaintiffs’ claim that a blanket termination decision was made constituting a final agency action.

If the decisions were made intermittently, following an individualized review and decision-making

process over the month of March, defendants’ position that individual assessments resulted in

terminations may be lent support instead. See Ass’n for Educ. Fin. & Pol’y,

,

at *7.

As to the question of defendants’ purpose in terminating the cooperative agreements—

whether to reallocate unused funds in accord with both congressional requirements and the new

Administration’s policy prerogatives, as defendants’ counsel represents, or to defy Congress and

not spend the funds as legislatively required, as plaintiffs allege—plaintiffs rely on the same three

online posts. Two of the posts tout the termination of an unclear number of so-called “America

Last” cooperative agreements, see March 14 Chavez-DeRemer Post; March 26 Chavez-DeRemer

Post, providing evidence that Secretary Chavez-DeRemer disapproved of the specific projects

referenced, which were apparently supported by ILAB cooperative agreements. Moreover, the

reference in the March 26 post to money “saved” resulting from the agreement terminations might

suggest a plan not to spend the funds. See March 26 Chavez-DeRemer Post. At the same time,

this statement could also indicate only that the funds would not be spent on the terminated

agreements but would be reallocated to others more in line with the Administration’s view of how

to fulfill the applicable legislative mandates. See April 1 DOL Post (referencing “reinvesting” the

money “into the AMERICAN Workforce”). Whether plaintiffs’ version of the factual

circumstances of the ILAB cooperative agreement terminations is correct remains unclear on the

52 current record. Consequently, plaintiffs have not shown they are entitled to summary judgment

on Counts II, III and IV.

Turning to defendants’ motion reveals that defendants have also failed clearly to establish

as true, through admissible evidence in the record, their version of the facts. While defendants’

counsel argued at the motions hearing that each grant was evaluated and “terminated individually,”

Mots. Hr’g Tr. at 46:2-6, defendants have offered zero admissible evidence, in the form of a

declaration of an agency official with personal knowledge, to support that claim, see FED. R. CIV.

P. 56(c)(4). In fact, while defendants submitted one declaration, from the Administrator of DOL’s

Office of Grants Management, Employment, and Training Administration, in support of their

motion, that declaration does not address any aspect of the termination decisions. See generally

Kodiak Decl. The same is true of defendants’ counsel’s representation at the motions hearing that

“the agency’s intention is to reallocate” eligible ILAB funds to fund new projects in line with the

Trump Administration’s policy priorities. Mots. Hr’g Tr. at 62:9-13. This representation, again,

surfaced only at the motions hearing, without any prior appearance anywhere in the record, as

defendants’ counsel conceded,

, and is not supported by any sworn declaration,

see generally Kodiak Decl. “[A] lawyer’s argument . . . does not substitute for admissible evidence

in support of or in defense against a summary judgment motion.” Am. Postal Workers Union, AFL-

CIO v. USPS,

(D.D.C. 2014) (citing Tom Sawyer Prods., Inc. v.

Progressive Partners Achieving Sols., Inc.,

(D.D.C. 2008); Davis v. District

of Columbia, No. 05-cv-2176,

, at *5 (D.D.C. Sept. 28, 2006)); see also Twin

Rivers Paper Co. v. SEC,

(D.C. Cir. 2019) (noting that, where an “affidavit or

other evidence” is required, “briefs ‘are not evidence’” (citation omitted)). Defendants’ counsel’s

representations, therefore, cannot weigh in favor of defendants’ motion for summary judgment,

53 and defendants have not presented other evidence supporting these claims, much less establishing

them as undisputed facts.

When a party fails to support properly a motion for summary judgment with admissible

evidence, Rule 56 gives courts discretion in how to resolve the motion, including “(1) giv[ing the

party] an opportunity to properly support . . . the fact,” “(2) consider[ing] the fact undisputed for

purposes of the motion,” “(3) grant[ing] summary judgment if the motion and supporting materials

— including the facts considered undisputed — show that the movant is entitled to it,” or “(4)

issu[ing] any other appropriate order.” FED. R. CIV. P. 56(e)(1)-(4). Here, denial of defendants’

cross-motion is the appropriate step for several reasons. First, under the circumstances in this case,

where neither party has demonstrated that they are entitled to summary judgment, denial of

defendants’ cross-motion will allow defendants another opportunity to submit and support

properly a motion for summary judgment. Such a future motion may have the benefit of a more

fulsome evidentiary record, including the forthcoming administrative record. See Parties’ JSR at

2. Moreover, although defendants’ counsel’s representations at the motions hearing, without more,

do not constitute admissible evidence, plaintiffs have not asked for any facts to be considered

undisputed. Finally, with respect to the cross-motion, defendants are the moving party, and their

failure adequately to support their motion means they are not entitled to summary judgment. For

these reasons, denial of defendants’ motion is proper under Rule 56(e).

On the current record, then, the factual issues of (1) the process by which DOL terminated

the ILAB cooperative agreements, (2) whether the agency intends to spend the available funds

appropriated to ILAB as required by Congress, and (3) whether DOL and ILAB are undertaking

efforts to, or have already, satisfied the congressional minimum spending requirements set out in

appropriations acts and other laws, remain genuinely disputed by the parties. To see why the

54 outcomes of these factual disputes are material to resolution of summary judgment on Counts II,

III, and IV, and thus why they preclude granting summary judgment to either party, consider the

claims at issue in each count.

In Count II, plaintiffs allege that defendants’ decision to “eliminat[e] ILAB’s entire federal

financial assistance portfolio,” Compl. ¶ 74, violated the requirements of the USMCA

Implementation Act and the FY 2021-2024 Appropriations Acts. See Compl. ¶¶ 72-74. If

plaintiffs establish that defendants made a decision to eliminate all ILAB spending and not to

reallocate those funds, plaintiffs would likely prevail on their claim that defendants’ action was in

violation of congressional spending mandates. See In re Aiken Cnty.,

(D.C. Cir.

2013) (“[T]he President and federal agencies may not ignore statutory mandates or prohibitions

merely because of policy disagreement with Congress.” (citing Lincoln v. Vigil,

(1993))); Lincoln,

(“Of course, an agency is not free simply to disregard statutory

responsibilities: Congress may always circumscribe agency discretion to allocate resources by

putting restrictions in the operative statutes.”). On the other hand, if defendants are correct that

each agreement was terminated following individualized review and determination that the

programs funded did not meet the legislative goals in a manner consistent with the new

Administration’s policy choices, plaintiffs likely would have to challenge each termination

separately, as a discrete final agency action, and likely could not point to any one agency decision

that amounted to a violation of spending requirements, since ILAB funds are appropriated “not to

any of the plaintiffs” but “rather . . . to ILAB.” Defs.’ Opp’n at 26 (emphasis in original); Pls.’

Mem. at 24-25 (acknowledging that “the appropriations statutes authorizing ILAB to fund

technical assistance and other projects abroad provide Defendants with wide latitude in both

substance and form, giving the agency multiple ways to implement these programs and providing

55 only broad guidelines on the types of international labor issues to be targeted”). Furthermore, if

defendants intend to reallocate funds from the terminated cooperative agreements to meet statutory

requirements, or if the statutory requirements have already been satisfied by previous spending,

plaintiffs’ claim that defendants violated the requirement in the appropriations acts is less likely to

prevail. See Pls.’ Mem. at 25 (arguing only that “[w]hat Defendants cannot do is decide not to

spend the funds Congress appropriated for these purposes”).

Similarly, Count III claims that defendants have unlawfully impounded funds by

terminating the agreements and refusing to spend the money. See Compl. ¶ 80. As before, if

plaintiffs establish that defendants decided to terminate all ILAB cooperative agreements with the

intention of not spending funds as Congress required in appropriation acts, they are more likely to

succeed on their claim of a violation of the Impoundment Control Act. If defendants intend to

reallocate the available funds, however, plaintiffs likely could not show that an unlawful

impoundment exists.

The same logic applies to Count IV, which claims that defendants violated the Anti-

Deficiency Act by “refusing to spend funds that Congress has appropriated for ILAB’s

programming.” Compl. ¶ 83. If defendants decided to cancel the agreements with the intention

of withholding required spending, the violation alleged may exist. At the same time, however, the

converse is true: if after terminating the agreements, defendants do intend to spend the funds at

issue, no violation of the Anti-Deficiency Act would be established. See

***

Since the identified disputes about the basic facts of this case are material but remain murky

and unresolved on the current record, summary judgment must be denied to both sides as to Counts

II, III, and IV.

56 3. Count I

In Count I, plaintiffs allege that defendants’ termination of ILAB’s cooperative agreements

was “ultra vires,” Compl. ¶ 68, and “usurped legislative authority,” id. ¶ 71, by failing to comply

with minimum required spending levels set by the USMCA Implementation Act and the FY 2021-

2024 Appropriations Acts, and thereby violated the Constitution’s separation of powers, see id. ¶¶

68-71. This claim rests on the same allegations asserted to be contrary to law, in violation of the

APA, set out in Count II. See Compl. ¶¶ 72-74. This commonality means that Count I, like Count

II, requires plaintiffs to prove that defendants have violated the spending requirements established

by the USMCA Implementation Act and FY 2021 through 2024 Appropriations Acts. Since the

record is unclear on this point and a genuine dispute of material facts remains, see supra Part

III.B.2., summary judgment must be denied to both sides on Count I.

Defendants urge that ultra vires review is categorically unavailable in this case. See Defs.’

Opp’n at 19. Before enactment of the APA, when “those challenging agency action often lacked

a statutory cause of action,” “courts recognized a right to equitable relief where an agency’s action

was ultra vires—that is, ‘unauthorized by any law and . . . in violation of the rights of the

individual.’” Nuclear Regul. Comm’n v. Texas,

, 1775 (2025) (quoting Am. Sch.

of Magnetic Healing v. McAnnulty,

, 110 (1902)). Since the APA was enacted,

however, the Supreme Court has “strictly limited nonstatutory ultra vires review” to avoid creating

an “easy end-run around the limitations of . . . judicial-review statutes.” Id.; see also Am. Foreign

Serv. Ass’n v. Trump, No. 25-5184,

, at *2 (D.C. Cir. June 20, 2025) (“[U]ltra

vires review . . . is ‘strictly limited’ when ‘other judicial-review statutes’ are present.” (quoting

Nuclear Regul. Comm’n, 145 S. Ct. at 1775)); Griffith v. FLRA,

(D.C. Cir. 1988)

(describing ultra vires review as “of extremely limited scope”). Specifically, ultra vires review

57 “applies only when an agency has taken action entirely ‘in excess of its delegated powers and

contrary to a specific prohibition’ in a statute,” Nuclear Regul. Comm’n, 145 S. Ct. at 1776

(emphasis in original) (quoting Ry. Clerks v. Ass’n for Benefit of Non-Contract Emps.,

(1965)), and is “also unavailable if . . . a statutory review scheme provides aggrieved

persons ‘with a meaningful and adequate opportunity for judicial review,’”

(quoting Bd. of

Governors, FRS v. MCorp Fin., Inc.,

(1991)). Even where an ultra vires claim is

available, such a challenge “rarely succeeds,” Nyunt v. Chairman, Broadcasting Bd. of Governors,

(D.C. Cir. 2009) (Kavanaugh, J.), and requires satisfying the traditional factors

for injunctive relief, since this type of review “is a suit in equity,” Am. Foreign Serv. Ass’n,

, at *2.

Here, defendants argue that an ultra vires claim is unavailable to plaintiffs for two reasons,

but neither is availing on the current record. First, defendants claim that the Tucker Act precludes

plaintiffs’ ultra vires claim because “seek[ing] relief from the Court of Federal Claims,” Defs.’

Opp’n at 19, provides a “‘meaningful and adequate means of vindicating’ plaintiffs’ rights,”

(quoting MCorp Fin.,

). Since plaintiffs’ claims do not fall within the bounds of the

Tucker Act, however, see supra Part III.A., the Tucker Act does not offer an alternative means for

plaintiffs to vindicate their rights and thus cannot preclude plaintiffs’ ultra vires claim.

Second, defendants argue that Count I “repeats Plaintiffs’ allegations concerning their

statutory claims and nothing else,” Defs.’ Opp’n at 20, and that “[t]he Supreme Court has made

clear that ‘claims simply alleging that the President has exceeded his statutory authority are not

constitutional claims, subject to judicial review,’” id. (internal quotation marks omitted) (quoting

Dalton v. Specter,

(1994)). According to defendants, Count I runs afoul of “the

58 long tradition of ‘distinguish[ing] between claims of constitutional violations and claims that an

official has acted in excess of his statutory authority.’”

(quoting Dalton,

).

In Dalton, the Supreme Court explained that “where a claim ‘concerns not a want of

[Presidential] power, but a mere excess or abuse of discretion in exerting a power given, it is clear

that it involves considerations which are beyond the reach of judicial power.’”

(alteration in original) (quoting Dakota Cent. Tel. Co. v. South Dakota ex rel. Payne,

(1919)). In other words, if an official acts pursuant to a power granted by a statute, and a

plaintiff claims that official exceeded that power’s scope, an ultra vires claim is unavailable. On

the other hand, in cases where “no statutory authority was claimed” to support the official’s action,

and where “[t]he only basis of authority asserted was the [official]’s inherent constitutional

power,” the questions “necessarily turn[] on whether the Constitution authorize[s] the . . . actions.”

at 473 (citing Youngstown Sheet & Tube Co. v. Sawyer,

)).

Whether plaintiffs can bring a viable ultra vires claim in this case likely depends on the

same unanswered questions previously detailed—namely, whether the termination of plaintiffs’

cooperative agreements along with all other ILAB agreements was a final agency decision to

entirely dismantle ILAB’s funding program due to disagreement or disapproval of Congress’s

policy choices embodied in legislation, as plaintiffs contend, or whether defendants terminated

each of these agreements, after review, in order to reallocate the funds, consistent with legal

mandates but in a manner better aligned with the current Administration’s policy priorities. See

supra Part III.B.2. If defendants are correct about their characterization of the terminations, the

parties agree that “the appropriations statutes authorizing ILAB to fund technical assistance and

other projects abroad provide Defendants with wide latitude in both substance and form, giving

the agency multiple ways to implement these programs and providing only broad guidelines on

59 the types of international labor issues to be targeted.” Pls.’ Mem. at 24-25; Defs.’ Mem. at 26

(citing approvingly the quoted language). Plaintiffs’ challenge would, under these circumstances,

amount to asserting “a mere excess or abuse of discretion in exerting a power given,” Dalton,

(quoting Dakota Cent. Tel. Co.,

), and thus an ultra vires claim likely

would not be available.

On the other hand, if plaintiffs are correct that defendants sought to end the ILAB funding

program entirely due to a policy disagreement with Congress, see Compl. ¶ 71, the claim would

then become one alleging that “Defendants acted in the absence of any statutory authority—and

indeed, in direct defiance of contrary statutory authority—when they cancelled all ILAB

programs.” Pls.’ Reply at 13; accord AFL-CIO v. Dep’t of Labor, No. 25-cv-339 (JDB), --- F.

Supp. 3d ---,

, at *22 (D.D.C. Apr. 16, 2025) (finding an ultra vires claim existed

where “[t]he best reading of [the] argument [at issue] . . . is that [defendant] is operating without

any legal authority whatsoever, whether statutory or constitutional” (emphasis in original)); Chi.

Women in Trades v. Trump, No. 25-cv-2005,

, at *1, *5 (N.D. Ill. May 7, 2025)

(finding, in a case challenging the termination of grants as violating the Spending Clause and

separation of powers, that “no . . . discretionary power exists,” because “[t]he Executive Branch

must respect congressional appropriations,” and thus that the claim in the case was “best

characterized as a claim that the President acted in the absence of any authority, and not a claim

that he exceeded statutory authority” (emphasis in original)). Under such circumstances, plaintiffs

could likely bring a viable ultra vires claim. See, e.g., In re Aiken County,

n.1

(“[A] President sometimes has policy reasons . . . for wanting to spend less than the full amount

appropriated by Congress for a particular project or program. But in those circumstances, even

the President does not have unilateral authority to refuse to spend the funds.”); Arpaio v. Obama,

60

, 210 n.14 (D.D.C. 2014) (“[T]he President cannot refuse to expend funds

appropriated by Congress.”); Guadamuz v. Ash,

(D.D.C. 1973)

(explaining that, when funds have been appropriated for a purpose, “the Executive has no residual

constitutional power to refuse to spend these appropriations”); AIDS Vaccine Advoc. Coal., 770 F.

Supp. 3d at 126-27.

Since a genuine dispute of material facts exists as to whether defendants have refused to

spend the amounts required by the USMCA Implementation Act and the FY 2021-2024

Appropriations Acts, see supra Part III.B.2., summary judgment on Count I must be denied to both

sides.

C. Preliminary Injunction

For essentially the same reasons as those already discussed, plaintiffs’ motion for a

preliminary injunction on Count V, which claims defendants acted arbitrarily and capriciously

under the APA, “by terminating, without warning or justification, Plaintiffs’ cooperative

agreements and forcing them to abandon their projects, which are consistent with longstanding

American labor and trade policy,” Compl. ¶ 87, must also be denied. This APA claim rests on the

same allegations underlying Counts I, II, III and IV that defendants “deci[ded] to terminate all

ILAB’s cooperative agreements, and as a result to shut down the Bureau’s entire technical

assistance program,” Pls.’ Mem. at 22; see also Pls.’ Reply at 21 (challenging defendants’

“decision to cancel all of ILAB’s cooperative agreements”), a decision described by plaintiffs as

“unreasonable” and in pursuit of the “unlawful goal of entirely terminating a congressionally

mandated program,” Compl. ¶ 85. Given the uncertainty on the current record about whether

defendants terminated all ILAB cooperative agreements to defy compliance with congressional

mandates or rather to pursue those mandates by reallocating the funds in an alternative manner,

61 see supra Part III.B.2., plaintiffs have not made the required “clear showing,” Winter,

, that they are likely to succeed on the merits of their claim.

“When a plaintiff has not shown a likelihood of success on the merits, there is no need to

consider the remaining factors.” Greater New Orleans Fair Hous. Action Ctr. v. U.S. Dep’t of

Hous. & Urb. Dev.,

(D.C. Cir. 2011) (citing Ark. Dairy Coop. Ass’n, Inc. v.

U.S. Dep’t of Agric.,

(D.C. Cir. 2009), and Apotex, Inc. v. FDA,

(D.C. Cir. 2006)); see also Guedes v. ATF,

(D.C. Cir. 2019) (“[B]ecause the

plaintiffs have shown no likelihood of success on the merits, we choose not to ‘proceed to review

the other three preliminary injunction factors.’” (quoting Ark. Dairy Coop.,

)).

Since plaintiffs have failed to show, on the current record, that they are likely to succeed on the

merits of Count V, their motion for a preliminary injunction as to Count V is denied.

IV. CONCLUSION

For the reasons explained, defendants’ contention that dismissal of the complaint is

warranted because the Court of Federal Claims has exclusive jurisdiction, under the Tucker Act,

over the constitutional and APA claims in this case is rejected. Subject matter jurisdiction may be

properly exercised by this Court to address the merits of plaintiffs’ claims. On the current record,

however, neither side has demonstrated entitlement to the relief sought, requiring denial of both

sides’ partial cross-motions for summary judgment on Counts I, II, III and IV and plaintiffs’

motion for a preliminary injunction on Count V.

An order consistent with this Memorandum Opinion will be entered contemporaneously.

Date: June 30, 2025

__________________________ BERYL A. HOWELL United States District Judge

62