UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) VERA INSTITUTE OF JUSTICE, et al., ) ) ) Plaintiffs, ) ) v. ) Case No. 25-cv-1643 (APM) ) U.S. DEPARTMENT OF JUSTICE, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I. INTRODUCTION

In April 2025, the Department of Justice’s Office of Justice Programs, without warning,

terminated more than 370 multi-year cooperative agreements and grants totaling more than

$820 million. In identical notices issued to the affected organizations, the Office of Justice

Programs vaguely explained that the reason for the terminations was that the “awards no longer

effectuate[] the program goals or agency priorities.” The notices instructed the grantees to stop

work immediately and informed them that they would be reimbursed only up to the date of

termination.

Plaintiffs are five organizations that had their awards terminated. Asserting both

constitutional and statutory claims, Plaintiffs seek a preliminary injunction that reverses the

terminations and restores their awards. They assert that their operational health and ability to fulfill

their missions depend on the funds promised. Plaintiffs also seek to certify a class comprised of

the hundreds of other grantees whose awards were terminated and ask that their funding be

reinstated, too. The Office of Justice Programs’ decision to terminate these awards was unquestionably

arbitrary, at least in lay terms. The agency advised the grantees that it had “changed its priorities”

to focus on, among other things, “more directly supporting certain law enforcement operations,”

“combatting violent crime,” and “supporting American victims of trafficking and sexual assault.”

The monies awarded to these Plaintiffs, however, were for those very purposes. Lead Plaintiff

Vera Institute for Justice used one of its awards to train law enforcement on investigating human

trafficking of persons with disabilities. Plaintiff Children and Youth Justice Center received funds

to prevent and reduce gun violence against youth in King County, Washington. Plaintiff FORCE

Detroit put its grant towards community violence intervention in Detroit’s Warrendale-Cody

Rouge neighborhood. Plaintiff Heath Resources in Action used its funding to support violence

prevention professionals and programs. And Plaintiff Chinese for Affirmative Action, which does

business as Stop AAPI Hate, dedicated its grant towards, among other things, increasing safety on

public transit systems. When asked at oral argument why these awards were no longer consistent

with the agency’s new priorities, Defendants’ counsel had no answer. He simply shrugged his

shoulders.

Defendants’ rescinding of these awards is shameful. It is likely to harm communities and

individuals vulnerable to crime and violence. No federal agency, especially the Department of

Justice, should conduct itself in such manner.

But displeasure and sympathy are not enough in a court of law. The court’s powers are

limited. It cannot act without jurisdiction or in the absence of a valid cause of action. That is the

nub here. The court cannot grant Plaintiffs relief because it lacks the power to hear their claims

under the Administrative Procedure Act, and because Plaintiffs have failed to demonstrate a

violation of any constitutional right or protection.

2 For those reasons, the court denies preliminary injunctive relief and grants Defendants’

pending motion to dismiss. As the court denies preliminary relief and dismisses this action, it also

denies the pending motion for class certification as moot.

II. BACKGROUND

A. Statutory and Regulatory Background

The Office of Justice Programs (“OJP”) is the Department of Justice’s (“DOJ’s”) largest

grantmaking component and “advances DOJ’s mission in part by making thousands of

discretionary grant agreements to state and local law enforcement agencies, as well as to

community-based and other non-governmental entities.” See Defs.’ Mot. to Dismiss & Opp’n to

Pls.’ Mot. for Prelim. Inj., ECF No. 27 [hereinafter Defs.’ Mot. to Dismiss], Decl. of Maureen A.

Henneberg, ECF No. 27-1 [hereinafter Henneberg Decl.], ¶ 4. According to Defendants, the

funding for the vast majority of OJP awards is “no year” monies from Congress, meaning that they

do not need to be spent within the fiscal year for which they are appropriated and they remain

available until expended. Id. ¶ 17; see, e.g., Consolidated Appropriations Act, 2022,

Stat. 49, 123–24; Bipartisan Safer Communities Act,

Stat.

1313, 1338–39 (2022); see also

(c), 20103(c)(1)(A) (congressionally created

Crime Victims Fund which is permanent and available for grants “without fiscal year limitation”).

Congress earmarked these funds for certain broad purposes, but it did not mandate that the

funds be awarded to any specific organization. See, e.g., Consolidated Appropriations Act, 2024,

Stat. 25, 149 (appropriating “$50,000,000 for a community violence

intervention and prevention initiative”); Consolidated Appropriations Act, 2022, 136 Stat. at 125

(appropriating “$184,707,000 . . . for discretionary grants to improve the functioning of the

3 criminal justice system, to prevent or combat juvenile delinquency, and to assist victims of crime”).

OJP makes discretionary awards from these appropriations. Henneberg Decl. ¶¶ 4–5.

OJP grants are subject to the Office of Management and Budget’s Uniform Administrative

Requirements, Cost Principles, and Audit Requirements for Federal Awards (“Uniform

Guidance”). See

(DOJ adopting the Uniform Guidance). Part of the Uniform

Guidance addresses when a federal award may be terminated. See

. It identifies

four such circumstances, three of which are not at issue here: (1) “the recipient or subrecipient fails

to comply with the terms and conditions” of the award; (2) the parties consent to termination; or

(3) the recipient voluntarily terminates the award.

§ 200.340(a)(1)–(3). The fourth, which is

at the heart of this case, allows a federal agency to terminate a grant unilaterally “pursuant to the

terms and conditions of the [] award, including, to the extent authorized by law, if an award no

longer effectuates the program goals or agency priorities.” Id. § 200.340(a)(4).

Importantly, any basis for termination must be spelled out in the award itself. The

regulations provide that the agency “must clearly and unambiguously specify all termination

provisions in the terms and conditions of the Federal award.” Id. § 200.340(b). An agency

therefore must have a textual hook to terminate. Thus, if OJP wishes to end an award under

§ 200.340(a)(4) based on its failure to effectuate agency priorities, it can do so only if that basis

for termination is itself in the terms and conditions of the award. See Guidance for Federal

Financial Assistance,

, 30,089 (Apr. 22, 2024) (clarifying that terminations

based on an award “no longer effectuat[ing]” agency priorities are allowed “[p]rovided that the

language is included in the terms and conditions of the award”).

4 B. Grant Terminations

At the start of the new Trump administration, there were roughly 11,000 open OJP grant

awards. Henneberg Decl. ¶ 18. In February 2025, DOJ leadership began a review of those awards,

“focusing on the possibility of termination of particular OJP awards, grounded in consideration of

whether (based on their individual project descriptions) they effectuated [DOJ’s] priorities.”

Defendants say that they conducted an “individualized review of open grant awards,” which within

weeks reduced “the number of awards under active focus . . . to approximately 2,200.”

Then

throughout April 2025, “OJP was directed to terminate 376 individual, specifically identified

discretionary grant awards (to 219 recipients), on the basis of the Department determination that

they ‘no longer effectuate[d] Department priorities.’”

. Beyond this, Defendants have

offered zero insight into what criteria they used to evaluate the project descriptions, reduce the

number of awards under “active focus,” and determine which of them would ultimately be

terminated.

The record includes the termination notices that OJP delivered to the five Plaintiff-

organizations, all of which are identical. See Pls.’ Mot. for Prelim. Inj., ECF No. 3 [hereinafter

Prelim. Inj. Mot.], Decl. of Rachel Sottile, ECF No. 3-3 [hereinafter Sottile Decl.,], Exs. 2, 4

(Center for Children & Youth Justice’s termination letters); Prelim. Inj. Mot., Decl. of Cynthia

Choi, ECF No. 3-4 [hereinafter Choi Decl.], Ex. 2 (Stop AAPI Hate’s termination letter); Prelim.

Inj. Mot., Decl. of Dujuan Kennedy, ECF No. 3-5 [hereinafter Kennedy Decl.], Ex. 2 (FORCE

Detroit’s termination letter); Prelim. Inj. Mot., Decl. of Steven Ridini, ECF No. 3-6 [hereinafter

Ridini Decl.], Exs. 2, 4, 6 (Health Resources in Action’s termination letters); Prelim. Inj. Mot.,

Decl. of Nicholas Turner, ECF No. 3-7 [hereinafter Turner Decl.], Ex. 6 (Vera Institute of Justice’s

5 termination letter). Sent via email, the notices immediately ceased future funding. OJP offered

the same boilerplate explanation to each grant recipient:

This award is being terminated because it “no longer effectuates the program goals or agency priorities.”

(a)(4). The Department has changed its priorities with respect to discretionary grant funding to focus on, among other things, more directly supporting certain law enforcement operations, combatting violent crime, protecting American children, and supporting American victims of trafficking and sexual assault, and better coordinating law enforcement efforts at all levels of government. This award demonstrates that it no longer effectuates Department priorities.

See, e.g., Sottile Decl., Ex. 2. The notices offered no explanation as to why the grantees’ awards

no longer effectuated agency priorities. See generally

The notices alerted recipients to an appeals process to dispute their terminations.

Consistent with

, grant recipients had 30 days to submit a written appeal to the

Assistant Attorney General for OJP.

C. Procedural Background

Plaintiffs are five grantees who had their awards terminated in April 2025. See Compl.,

ECF No. 1 [hereinafter Compl.], ¶¶ 42–43.

• Vera Institute of Justice (“Vera”) is a New York-based nonprofit that seeks “to pilot, test, and scale innovations that prevent crime and address its drivers, increase accountability, and rely less on incarceration and more on the programs and services that help individuals, families, and communities to thrive.” Compl. ¶¶ 17, 39. OJP made five awards to Vera totaling $7.25 million running through September 30, 2027.

; Turner Decl. ¶¶ 19, 24, 31, 37, 45. OJP terminated the awards on April 4, 2025, with approximately $5.4 million in funds remaining. Turner Decl. ¶¶ 8–9.

• The Center for Children & Youth Justice (“CCYJ”) is a Washington state-based nonprofit seeking “to create better lives for generations of children and youth by reforming the child welfare and juvenile justice systems.” Compl. ¶ 13. OJP made two awards to CCYJ totaling $6 million for the fiscal years

6 ending September 30, 2025, and September 30, 2026.

; Sottile Decl. ¶¶ 19, 27. OJP terminated both awards on April 22, 2025, with roughly $4.1 million in funds remaining. See Sottile Decl., ¶¶ 9, 11.

• Chinese for Affirmative Action, doing business as Stop AAPI Hate, “is a U.S.-based non-partisan Civil Rights coalition dedicated to ending racism and discrimination against Asian Americans and Pacific Islanders (AAPIs).” Compl. ¶ 14. OJP made a $2 million grant to Stop AAPI Hate to run from October 1, 2024, through September 30, 2027.

; Choi Decl. ¶ 13. The agency terminated the award on April 22, 2025, after Stop AAPI Hate had withdrawn only $500,000. Choi Decl. ¶¶ 18–19.

• “FORCE (Faithfully Organizing for Community Empowerment) Detroit is a community violence intervention . . . organization dedicated to building a safer, freer Detroit, Michigan.” Compl. ¶ 15. OJP awarded FORCE Detroit $1,999,998 for the period of October 1, 2024, through September 30, 2027. Kennedy Decl. ¶ 6. OJP terminated the award on April 22, 2025, with $1,945,998 in funds remaining.

.

• “Health Resources in Action (‘HRiA’) is a Massachusetts based non-profit organization working to improve and reimagine public health, with a vision of healthy people thriving in equitable and just communities.” Compl. ¶ 16. OJP made three grant awards to HRiA totaling approximately $8.55 million to run through September 30, 2027.

; see also Ridini Decl., ¶¶ 28, 31;

Exs. 1, 3, 5. OJP terminated all three awards on April 22, 2025, with over $6.75 million in funds remaining. Ridini Decl. ¶¶ 11–12.

Plaintiffs filed suit on May 21, 2025, challenging the grant terminations. See generally

Compl. They assert both statutory and constitutional claims. They allege that the grant

terminations (1) were arbitrary and capricious, contrary to law, and contrary to a constitutional

right under the Administrative Procedure Act (“APA”),

, 706(2)(A) (Counts V and

VI); (2) violated their right to due process under the Fifth Amendment, and were based on an

unconstitutionally vague regulation (Counts I and II); and (3) violated the doctrine of the

separation of powers, the Spending and Appropriations Clauses, and the Take Care Clause

7 (Count IV). See

¶¶ 82–98, 104–34. They also assert an equitable ultra vires claim against the

individual Defendants, the Attorney General and the acting head of OJP (Count III).

¶¶ 99–

103.

Plaintiffs also seek to proceed as representatives of a class. They request certification of a

class as follows:

All entities in the United States issued awards by the U.S. Department of Justice (DOJ) Office of Justice Programs, whose grants DOJ terminated in April 2025 pursuant to

(a)(4).

Compl. ¶ 74.

Plaintiffs demand various forms of relief. 1 In sum, they ask the court (1) to declare

unlawful, vacate, and set aside OJP’s en masse terminations of the putative class members’ grants;

(2) to declare that the terminations violate the Fifth Amendment, the separation of powers, the

Take Care Clause, and the Appropriations and Spending Clauses; (3) to declare that the

terminations based on

(a), and OJP’s interpretation of that regulation, are

unlawful; (4) to preliminarily and permanently enjoin Defendants from giving effect to the

terminations and re-obligating those funds to other organizations; and (5) to “[e]nter an order in

the exercise of the court’s equitable powers that directs Defendants to take all steps necessary to

ensure that OJP disburses funds to Plaintiffs in the customary manner and in customary

timeframes[.]”

at 29–31.

Plaintiffs simultaneously moved for preliminary injunctive relief and class certification.

See Class Cert. Mot., ECF No. 2; Prelim. Inj. Mot. Defendants opposed such relief and moved

to dismiss for lack of subject matter jurisdiction and for failure to state a claim. See Defs.’ Mot.

to Dismiss. The court held a hearing on the pending motions on June 26, 2025.

1 The Complaint lists 17 separate forms of relief. Compl. at 29–31. The court has distilled them to five.

8 III. LEGAL STANDARDS

A. Preliminary Injunction

Preliminary injunctive relief is an “extraordinary and drastic remedy” that is “never

awarded as [a matter] of right.” Munaf v. Geren,

, 689–90 (2008) (internal quotation

marks and citations omitted). A court may grant the “extraordinary remedy . . . [only] upon a clear

showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def. Council, Inc.,

(2008) (citing Mazurek v. Armstrong,

(1997) (per curiam)).

The preliminary injunction factors are well established: plaintiffs must show that (1) they are

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

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

the public interest.” Id. at 20 (citations omitted). Where the federal government is the opposing

party, the balance of equities and public interest factors merge. See Nken v. Holder,

(2009).

Prior to the Supreme Court’s decision in Winter, the D.C. Circuit “allowed . . . a strong

showing on one factor” to “make up for a weaker showing on another.” Sherley v. Sebelius,

(D.C. Cir. 2011). The D.C. Circuit has since repeatedly suggested that this

“sliding scale” approach does not remain good law after Winter, but it has not squarely said so.

See, e.g.,

at 392–93; Davis v. Pension Benefit Guar. Corp.,

(D.C. Cir.

2009); Aamer v. Obama,

(D.C. Cir. 2014); Changji Esquel Textile Co. v.

Raimondo,

(D.C. Cir. 2022); Clevinger v. Advocacy Holdings, Inc.,

, 1235–36 (D.C. Cir. 2025). It has emphasized that “the first and most important” of these

four factors is whether the movant “ha[s] established a likelihood of success on the merits.”

Aamer,

. If a plaintiff cannot show a likelihood of success on the merits, “there

9 is no need to consider the remaining factors.” Greater New Orleans Fair Hous. Action Ctr. v. U.S.

Dep’t of Hous. & Urban Dev.,

(D.C. Cir. 2011). “[T]he ‘merits’ on which [a]

plaintiff must show a likelihood of success encompass not only substantive theories but also

establishment of jurisdiction.” Obama v. Klayman,

(D.C. Cir. 2015).

B. Motion to Dismiss

1. Rule 12(b)(1)

The court must dismiss a claim as to which it lacks subject matter jurisdiction.

See Arbaugh v. Y&H Corp.,

(2006); see Fed. R. Civ. P. 12(b)(1), 12(h)(3). The

plaintiff bears the burden of establishing the court’s subject-matter jurisdiction. See Lujan v. Defs.

of Wildlife,

(1992). The court must accept all well-pleaded factual allegations

in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

,

1253–54 (D.C. Cir. 2005) (citation omitted). “[W]here necessary, the court may consider the

complaint supplemented by undisputed facts evidenced in the record, or the complaint

supplemented by undisputed facts plus the court’s resolution of disputed facts” when resolving a

motion under Rule 12(b)(1). Coal. for Underground Expansion v. Mineta,

(D.C. Cir. 2003) (quoting Herbert v. Nat’l Acad. of Scis.,

(D.C. Cir. 1992)).

2. Rule 12(b)(6)

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), “a

complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its

face.” Sickle v. Torres Advanced Enter. Sols., LLC,

, 344–45 (D.C. Cir. 2018)

(alteration in original) (quoting Ashcroft v. Iqbal,

(2009)). A claim satisfies the

plausibility standard “when the plaintiff pleads factual content that allows the court to draw the

10 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

(citation omitted).

IV. JURISDICTION

Defendants first argue that Plaintiffs’ claims—all of them—must be dismissed because they

“stem from grant agreements with the government and seek relief that is quintessentially

contractual.” Defs.’ Mot. to Dismiss at 1. “[T]his suit belongs in the Court of Federal Claims,”

they say.

In so arguing, Defendants require this court to wade into the ongoing controversy

over whether federal grant termination cases belong in federal district courts or in the Court of

Federal Claims. See, e.g., Harris Cnty. v. Kennedy, --- F. Supp. 3d ---,

, at *14

(D.D.C. 2025) (citing cases with various approaches to the issue in this District).

“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. Gen. Servs.

Admin.,

(D.C. Cir. 2022) (citing Kalodner v. Abraham,

(D.C. Cir. 2002)). Under the APA, Congress has waived sovereign immunity on a limited basis

for lawsuits by “[a] person suffering legal wrong because of agency action, or adversely affected

or aggrieved by agency action within the meaning of a relevant statute, . . . [and] seeking relief

other than money damages.”

; see Crowley, 38 F.4th at 1105–06. The waiver does

not apply, however, “if any other statute that grants consent to suit expressly or impliedly forbids

the relief which is sought.” Crowley,

(quoting Perry Cap. LLC v. Mnuchin,

(D.C. Cir. 2017) (quoting

)).

According to Defendants, the “other statute” that forecloses this court’s jurisdiction in this

case is the Tucker Act. That law “confer[s] exclusive jurisdiction over breach of contract claims

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

11

at 1106 (quoting Hammer v. Untied States,

(D.C. Cir. 2021) (citations omitted)).

The D.C. Circuit has interpreted the Tucker Act as “impliedly forbid[ding] contract claims against

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

(internal

quotation marks omitted) (quoting Perry Cap., 84 F.3d at 618–19).

A. Constitutional and Ultra Vires Claims

Subject matter jurisdiction cannot be evaluated on a case-wide basis. “To resolve the

sovereign immunity and jurisdiction questions, [the court] must consider [Plaintiffs’] claims

individually[.]” Transohio Sav. Bank v. Dir., Off. of Thrift Supervision,

(D.C.

Cir. 1992). Though Defendants in their opposition brief failed to appreciate this nuance, their

counsel acknowledged at argument that jurisdiction may lie for certain claims and not for others.

See Hr’g Tr. 6/26/25, ECF No. 46 [hereinafter Tr.], 74:2-4 (“[I]nsofar as they have truly

independent constitutional claims, this [c]ourt has jurisdiction.”).

That concession was wise. Where the “source of the rights upon which the plaintiff bases

its claims,” Megapulse v. Lewis,

(D.C. Cir. 1982), is constitutional or statutory,

the D.C. Circuit has said that such claims belong in federal district court, see Transohio, 967 F.2d

at 609–10 (“[L]itigants may bring statutory and constitutional claims in federal district court even

when the claims depend on the existence and terms of a contract with the government.”). Further,

the fact that a favorable outcome might require the payment of money is no impediment to

jurisdiction. “[A] federal district court may accept jurisdiction over a statutory or constitutional

claim for injunctive relief even where the relief sought is an order forcing the government to obey

the terms of a contract—that is, specific performance.” Id. at 610.

The D.C. Circuit’s decisions in Transohio and Sharp v. Weinberger are illustrative. In both

cases, the court held that the APA waived sovereign immunity for the plaintiffs’ due process claims,

12 where they had asserted that government “contracts gave them a property interest, the denial of

which the Constitution prohibits.” Transohio,

; see Sharp v. Weinberger,

, 1523–24 (D.C. Cir. 1986). The plaintiffs in both cases also sought injunctive and declaratory

relief. See Transohio,

; Sharp,

.

Transohio and Sharp establish this court’s jurisdiction to hear Plaintiffs’ due process claims

(Counts I and II). Like those cases, Plaintiffs here contend that their grant awards gave them

“a protected property interest,” which OJP stripped “without the procedural due process rights to

which they are entitled.” Compl. ¶¶ 85, 87. Plaintiffs further assert that OJP deprived them of

their property rights based on an unconstitutionally vague application of § 200.340(a)(4). Id.

¶¶ 94–95. They seek injunctive and declaratory relief that would compel OJP to pay in full the

remaining grant funds. The APA therefore waives the United States’ sovereign immunity as to

these claims. See Transohio,

.

The same result obtains for Plaintiffs’ other constitutional claims. “The core principle

underlying” Plaintiffs’ separation of powers, Spending and Appropriation Clauses, and Take Care

Clause claims (Count IV) “is that the Constitution gives Congress, not the Executive Branch,

exclusive power over spending.” Harris Cnty.,

, at *4 (citing Dep’t of Navy v.

Fed. Lab. Rels. Auth.,

(D.C. Cir. 2012)); see also In re Aiken Cnty.,

(D.C. Cir. 2013) (stating that the Executive Branch must follow statutory mandates where

appropriated funds remain available). The source of these claimed rights is thus the Constitution,

not any grant award. The court therefore can hear those claims. See Harris Cnty.,

, at *4–6.

So, too, as to Plaintiffs’ equitable ultra vires cause of action (Count III). The rights sought

to be vindicated through that claim are those same constitutional and statutory principles regarding

13 Congress’s power of the purse. See, e.g., Harris Cnty.,

, at *16; Widakuswara

v. Lake, No. 25-5144,

, at *10 (D.C. Cir. May 3, 2025) (Pillard, J., dissenting)

[hereinafter Widakuswara I], on reconsideration en banc, No. 25-5144,

, at *1

(D.C. Cir. May 28, 2025) (vacating the panel’s decision for “substantially . . . the reasons explained

by Judge Pillard”). Plaintiffs’ position as to the ultra vires claim “is ultimately based, not on breach

of contract, but on an alleged governmental . . . violation of” constitutional principles and the

relevant appropriations statutes. Megapulse,

.

B. APA Claims

Whether the court has jurisdiction over the APA claims (Counts V and VI) is more

complicated. The D.C. Circuit has “interpreted the Tucker Act as providing the exclusive remedy

for contract claims against the government, at least vis a vis the APA.” Transohio,

.

“[A]n action against the United States which is at its essence a contract claim lies within the Tucker

Act and . . . a district court has no power to grant injunctive relief.” Megapulse,

(emphasis added). The “longstanding test” in this Circuit “for determining whether a claim falls

within the exclusive jurisdiction of the Claims Court pursuant to the Tucker Act” turns on two

factors: “the source of the rights upon which the plaintiff bases its claims,” and “the type of relief

sought (or appropriate).” Crowley,

(quoting Megapulse,

). In

assessing those factors, the court must be careful to guard against “a disguised contract action,”

Megapulse,

, that seeks to avoid the Tucker Act “merely by alleging violations of

regulatory or statutory provisions rather than breach of contract,” Ingersoll-Rand Co. v. United

States,

(D.C. Cir. 1985).

Plaintiffs make two APA claims. First, they assert that “OJP’s en masse termination of an

estimated 373 grants, on the same day, using the same cursory and unspecific rationale” was

14 arbitrary and capricious agency action. Prelim. Inj. Mot., Mem. in Supp., ECF No. 3-1 [hereinafter

Prelim Inj. Mem.], at 19; see

(2)(A). Second, Plaintiffs contend that the

terminations violated § 200.340(a)(4), and are thus contrary to law, insofar as none of their award

documents contained a provision that would permit OJP to terminate awards based on changed

agency priorities. Compl. ¶ 120; see

(2)(A).

The court holds that both APA claims are essentially contractual in nature and belong in

the Court of Federal Claims.

1. Department of Education v. California

The Supreme Court’s recent decision in Department of Education v. California frames the

jurisdictional inquiry.

, 968 (2025) [hereinafter California III]. Some detail about

the lower court proceedings is helpful to put the Supreme Court’s decision in context.

Various states filed suit against the Secretary of Education for terminating “all grants

previously awarded” under congressionally funded programs that provided grants to help teachers

in underserved areas. California v. Dep’t of Educ.,

, 75 (D. Mass. 2025)

[hereinafter California I]. The plaintiffs asserted that the terminations were both arbitrary and

capricious and contrary to law under the APA; they did not, however, assert any constitutional or

ultra vires claims. See Compl., ECF No. 1, ¶¶ 161–86, California v. Dep’t of Educ., No. 25-cv-

10548-AK (D. Mass.).

Their APA claims were identical to those asserted here. The plaintiffs in California I

insisted that the grant terminations were arbitrary and capricious because the defendants did not

engage in reasoned decisionmaking, did not conduct an individual analysis of each termination,

and failed to consider the reliance interests of the grant recipients.

. As to the contrary-to-

law claim, the plaintiffs maintained that “because the authority on which Defendants rely,” 2 C.F.R.

15 § 200.340(a)(4), “does not authorize termination on the independent grounds of ‘Department

priorities,’” the agency had to “‘clearly and unambiguously specify all termination provisions in

the terms and conditions of the federal award.’” Id. ¶ 14 (quoting

(b)). Because

“the terms and conditions of the . . . grant awards [did] not authorize termination on these grounds,”

the terminations were not “authorized by law.”

As relief, the plaintiffs requested that the court

“vacate and set aside [the defendants’] termination of all previously-awarded” grants and “restore

recipients . . . to the pre-existing status quo prior to the termination.” See

at 51–52.

The district court granted the requested temporary restraining order (“TRO”).

See California I, 769 F. Supp. 3d at 75. In doing so, it rejected the same jurisdictional argument

Defendants make here. The court ruled that the case did not belong in the Court of Federal Claims

because “the ‘essence’ of the action was not contractual in nature,” as the plaintiffs did not allege

“claims for past pecuniary harms” and “the dispute [did] not hinge on the terms of a contract

between the parties, but rather ‘federal statute and regulations put in place by Congress and the

[Department of Education].’” Id. at 76 (quoting Massachusetts v. Nat’l Insts. of Health,

, 293 (D. Mass. 2025)). On the merits, the court held that the grant terminations were

arbitrary and capricious because the Department of Education had failed to conduct individualized

analysis or offer a reasoned explanation for its en masse terminations.

at 76–78. The court did

not reach the contrary-to-law claim.

at 78 n.3. As relief, the district court ordered the

defendants to “immediately restore Plaintiff States to the pre-existing status quo prior to the

termination under all previously awarded . . . grants for recipients in Plaintiff States,” among

others.

.

The defendants appealed and moved for a stay, which the First Circuit denied. California

v. U.S. Dep’t of Educ.,

, 96–97 (1st Cir. 2025) [hereinafter California II]. The appellate

16 court held that jurisdiction was proper because, “although the terms and conditions of each

individual grant award are at issue, the ‘essence’ . . . of the claims is not contractual” as “the States

challenge the Department’s actions as insufficiently explained, insufficiently reasoned, and

otherwise contrary to law—arguments derived from the [APA].”

at 96–97. “Simply put, if the

Department breached any contract, it did so by violating the APA.”

. The court further

reasoned that, because the plaintiffs sought equitable relief by requiring the Department to continue

paying out appropriated funds, “[t]he 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.’”

(quoting Bowen v. Massachusetts,

(1988)).

The Supreme Court reversed and granted the defendants a stay. California III, 145 S. Ct.

at 968–69. It held that “the Government is likely to succeed in showing the District Court lacked

jurisdiction to order the payment of money under the APA.”

. The Court recognized 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,”

(quoting Bowen,

),

but distinguished Bowen insofar as “the APA’s limited waiver of immunity does not extend to

orders ‘to enforce a contractual obligation to pay money’ along the lines of what the District Court

ordered here,”

(quoting Great-West Life & Annuity Ins. Co. v. Knudson,

(2002)).

The Supreme Court’s sparse reasoning in California III has sown confusion in this

jurisdiction. Several judges on the D.C. Circuit “appear to have suggested that [California III]

forecloses district-court jurisdiction in grant-termination cases altogether.” Harris Cnty.,

, at *14 (citing Widakuswara v. Lake, No. 25-5150,

, at *2 (D.C. Cir.

May 28, 2025) (Katsas, J., dissenting, joined by Henderson, Rao, and Walker, JJ.) [hereinafter

17 Widakuswara II]). Another D.C. Circuit judge did not go as far. She instead distinguished between

“entities created by statute and designated by Congress to receive specified sums” and entities

whose “only claim was to sums awarded to them in previously awarded discretionary grants,” with

jurisdiction proper in federal district court in the former but not the latter. Widakuswara I,

, at *13 (Pillard, J., dissenting); see also Widakuswara II,

, at *1

(granting motion for en banc reconsideration and vacatur of government’s stay pending appeal for

“substantially” the same “reasons explained by Judge Pillard”).

Nor have judges in this District been uniform in their application of California III.

See Harris Cnty.,

, at *4–6, 14–15 (allowing constitutional claims to proceed,

declining to rule on APA contrary-to-statute and contrary-to-regulation claims, and finding that an

APA arbitrary-and-capricious claim is subject to California III’s bar); S. Educ. Found. v. U.S. Dep’t

of Educ., --- F. Supp. 3d ---,

, at *6–11 (D.D.C. 2025) (allowing an APA

arbitrary-and-capricious claim to proceed, reasoning that California III “does not displace

governing law”); Am. Ctr. for Int’l Labor Solidarity v. Chavez-Deremer, No. 25-cv-1128 (BAH),

, at *12–20 (D.D.C. June 30, 2025) (explaining that exclusive Tucker Act

jurisdiction does not apply to claims that “seek[] relief based only on an alleged statutory or

constitutional violation,” and finding jurisdiction because the cooperative agreements at issue did

not resemble contracts); Climate United Fund v. Citibank, N.A., --- F. Supp. 3d ---,

, at *9–12 (D.D.C. 2025) (allowing APA, statutory, and constitutional claims to proceed);

U.S. Conf. of Cath. Bishops v. U.S. Dep’t of State,

, 163 (D.D.C. 2025) (holding

that APA-styled claims belonged in the Court of Federal Claims where the plaintiff wanted the

court “to order the Government to stop withholding the money due under the Cooperative

Agreements”).

18 2. Application

a. Arbitrary and capricious

Against this unsettled terrain, this court agrees with Harris County’s approach and finds

that it lacks jurisdiction over Plaintiffs’ arbitrary-and-capricious claim under California III. As in

Harris County, the arbitrary-and-capricious claim here “appears in all material respects identical”

to that of California III. Harris Cnty.,

, at *15. That is: (1) Plaintiffs’ challenge

“involve[s] a statute that required the Executive Branch to issue grants . . . for specified purposes”;

(2) “the Executive Branch terminated [the] grants en masse with a boilerplate, one-paragraph

explanation”; and (3) “the plaintiffs challenged that explanation under the APA on the ground that

one paragraph does not cut it.”

(citing California III, 145 S. Ct. at 970–71, 975); see also

Prelim. Inj. Mem. at 18–22.

Plaintiffs respond that California III does not control because (1) the grants and cooperative

agreements at issue are not the type of contract that can give rise to Tucker Act jurisdiction,

see Prelim. Inj. Mem. at 31–33, and (2) California III’s precedential value is questionable, see

. Plaintiffs, however, fail to explain how the grant agreements in this case differ from those

in California III, which the Supreme Court treated as contracts implicating Tucker Act jurisdiction.

See California III, 145 S. Ct. at 968. Plaintiffs instead argue that the Supreme Court “had no

occasion whether to consider the grant agreements there were the type of contract that can give

rise to Tucker Act jurisdiction because no party raised that issue.” Prelim. Inj. Mem. at 36. That

is doubtful. After all, the Court held that the plaintiff’s arbitrary-and-capricious claim was

essentially contractual. It would be foolhardy to assume that the Supreme Court did not at least

implicitly consider whether the grants at issue were contracts in the first place.

19 In any event, Plaintiffs’ position is at odds with authorities from the Federal Circuit, which

has developed robust caselaw as to what constitutes a contract for purposes of the Tucker Act.

Where there is “(1) mutuality of intent to contract; (2) offer and acceptance; (3) consideration; and

(4) a government representative having actual authority to bind the United States,” there is an

enforceable contract for purposes of the Tucker Act. Columbus Reg’l Hosp. v. United States,

(Fed. Cir. 2021). The Federal Circuit “treat[s] federal grant agreements as

contracts when the standard conditions for a contract are satisfied, including that the federal entity

agrees to be bound.”

.

Plaintiffs argue that the grant and cooperative agreements at issue “are not contracts at all”

because they lack consideration, that is, a “‘direct, tangible’” benefit to the government. Prelim.

Inj. Mem. at 31 (quoting Am. Near E. Refugee Aid v. U.S. Agency for Int'l Dev.,

, 133 (D.D.C. 2023)). But the Federal Circuit has ruled otherwise. In Columbus Regional, the

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

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

the grant money.” Columbus Reg’l,

; see

(“[C]onsideraton may consist of

performance or a return promise to perform, and performance ‘may be a specified act of

forbearance, or any one of several specified acts or forbearances of which the offeree is given the

choice, or such conduct as will produce a specified result.’”) (quoting Restatement (Second of

Contracts) § 71 cmt. d (1981)). And further “at least some of the conditions imposed on [the

recipient] confer[red] a benefit on the government, such as [the recipient’s] promises to serve as a

collector or reimburser of funds procured by fraud and to report employees who have committed

drug offenses.” Id. Similarly, in State of Texas v. United States, the predecessor Court of Claims

concluded that “defendant’s valid execution of a document, which it prepared and titled ‘Federal-

20 State Disaster Assistance Agreement,’ specifying that ‘Federal assistance will be made available

in accordance with (various specified laws, Executive Orders and regulations)’ obligates defendant

to provide such assistance as called for by the parties’ agreement.”

, 468–69 (Ct. Cl.

1976).

As in those cases, Plaintiffs here “agreed to comply with an array of requirements attached

to the receipt, use, and distribution of the grant money.” Columbus Reg’l,

;

see also Henneberg Decl. ¶¶ 11–12. The grantees accepted the awards from OJP subject to dozens

of “Conditions.” See, e.g., Defs.’ Mot. to Dismiss, Exs. 2, 3, ECF Nos. 27-2 [hereinafter CYJC

Award], 26-3 (CYJC award containing 52 conditions). The government also received some direct

benefit from the agreements, such as a promise by the recipient to collect, maintain, and provide

data to OJP about program performance and effectiveness, see CYJC Award at 10 (Condition 13),

and to report any fraud, waste, and abuse, id. at 15 (Condition 29).

Plaintiffs also argue that “even if the grant agreements here qualified as contracts, they are

not the type of contract over which the Court of Federal Claims has jurisdiction” because they

contain no “affirmative indication that the agreement[s] create[] a right to money damages.”

Prelim. Inj. Mem. at 31, 32; see Rick’s Mushroom Serv., Inc. v. United States,

(Fed. Cir. 2008) (holding that a cooperative agreement did “not provide a substantive right to

recover money-damages”). But “[n]ormally contracts do not contain provisions specifying the

basis for the award of damages in case of breach,” and “[t]he fact that this contract covers

government financial grants does not warrant a different standard”—“[i]f the government has

breached the Agreement, [Plaintiffs are] entitled to seek whatever damages [they are] entitled to

receive.” San Juan City Coll. v. United States,

(Fed. Cir. 2004).

21 Plaintiffs acknowledge this principle but point to the Court of Federal Claims’ decision in

St. Bernard Parish Government v. United States for the proposition that money damages are not

available under a cooperative agreement where “no ‘specific provision in the agreement

contemplate[s] money damages for breach’” by the federal agency. See Prelim. Inj. Mem. at 33

(quoting

(2017)). But this position is at odds with the Federal Circuit’s

decision in San Juan City College, which, as here, involved a federal grant agreement that did not

contain a specific provision for money damages. See also San Antonio Hous. Auth. v. United

States,

, 462–63 (2019) (disagreeing with St. Bernard Parish that cooperative

agreements are not afforded a presumption of monetary damages). The trial-level decision in

St. Bernard Parish therefore is not persuasive.

Ultimately, the Supreme Court’s ruling in California III forecloses the exercise of

jurisdiction over Plaintiffs’ arbitrary-and-capricious claim. Although California III does not

displace other Supreme Court and D.C. Circuit precedent, see Am. Ctr. for Int’l Labor Solidarity,

, at *20; S. Educ. Found.,

, at *9, the Court has spoken in a

case substantially the same as this one. This court must listen. See Harris Cnty.,

, at *15; cf. Trump v. CASA, Inc., --- S. Ct. ---,

, at *22 (June 27, 2025)

(Kavanaugh, J., concurring) (“[W]hen this Court makes a decision on the interim legal status of a

major new federal statute or executive action—that decision will often constitute a form of

precedent (de jure or de facto) that provides guidance throughout the United States during the

years-long interim period until a final decision on the merits.”).

The court holds that Plaintiffs have not established this court’s jurisdiction over their

arbitrary-and-capricious APA claim, and therefore both denies injunctive relief and grants

dismissal as to that claim. See Spectrum Leasing Corp. v. United States,

(D.C.

22 Cir. 1985) (affirming dismissal where the matter was determined to be within the Court of Federal

Claims’ jurisdiction).

b. Contrary to law

Though the arbitrary-and-capricious claim is governed by California III, Plaintiffs’

contrary-to-law claim arguably stands on a different footing. 2 Recall, the Supreme Court in

California III had no occasion to consider jurisdiction over a contrary-to-law claim, because the

district court did not reach it when granting the TRO. See California I, 769 F. Supp. 3d at 78 n.3.

Still, Plaintiffs’ contrary-to-law claim runs aground for a different reason: D.C. Circuit precedent

requires dismissal for lack of jurisdiction. See Spectrum Leasing Corp.,

; Ingersoll-

Rand,

.

At issue in Spectrum Leasing was a contract awarded to Spectrum by the General Services

Administration (“GSA”) to develop a data communications network.

. The

government eventually terminated the contract by invoking its liquidated damages clause, after

which Spectrum sued, claiming that GSA violated the procedures set forth in the Debt Collection

Act,

et seq.

Spectrum sought (1) a declaration that GSA violated Spectrum’s

rights under the Debt Collection Act and (2) “an injunction compelling the GSA to cease

withholding hardware and maintenance payments under the contract.”

The D.C. Circuit found

that Spectrum’s suit belonged in the Court of Federal Claims because it sought “an injunction

requiring the government to pay monies owed for computer hardware,” and “[t]he right to these

payments is created in the first instance by the contract, not by the Debt Collection Act.”

. That is, “[t]he [Debt Collection Act], even if it applied, confers no such right in the absence

2 Plaintiffs also assert an APA claim that Defendants’ terminations are “contrary to constitutional right, power, privilege, or immunity.”

(2)(B); see Prelim. Inj. Mem. at 18; Compl. at 26 (Count V). The court allows this portion of the APA claim to proceed for the same reasons described in Section III.A, supra.

23 of the contract itself”—though the Act “might impose procedural requirements on the government

having some impact on the contract, the Act in no way creates the substantive right to the remedy

Spectrum seeks.” Id. The Circuit also looked to the type of relief sought, noting that “Spectrum

seeks an order compelling the government to pay money owed in exchange for goods procured

under an executory contract,” which it likened to “the classic contractual remedy of specific

performance.” Id. Based on “the source of the rights” and “the type of relief sought,” the

D.C. Circuit concluded that Spectrum’s claims were not properly in the jurisdiction of the federal

district court. Spectrum Leasing,

, 895 (quoting Megapulse,

).

Then there is Ingersoll-Rand. In that case, the plaintiff challenged the Air Force’s decision

to terminate its contract for convenience pursuant to Federal Acquisition Regulation 52.249-2(a),

which was incorporated into the contract.

. The essence of Ingersoll-Rand’s

argument was that the termination of the contract violated two other federal regulations and thus

was arbitrary and capricious under the APA.

. Applying the Megapulse test, the

D.C. Circuit found that “the essential rights at stake . . . are contractual” and that “the essence of

[Ingersoll-Rand’s] claim is a request for specific performance of the original contract.”

. As to the source of the rights, the court found that it was “possible to conceive of this dispute

as entirely contained within the terms of the contract” since the issue was really whether the text

of the contract forbids termination under the challenged conditions.

. “That the

termination also arguably violates certain other regulations does not transform the action into one

based solely on those regulations. Nor does plaintiff’s decision to allege only a violation of the

regulations change the essential character of the action.”

And, as to the remedy, since Ingersoll-

Rand “requested an order reinstating the original award of the contract,” it in essence requested

24 specific performance, and it could not sidestep Tucker Act jurisdictional limitations merely by

seeking “a declaratory and injunctive order.”

at 79–80.

Plaintiffs’ contrary-to-law claim is on par with Spectrum Leasing and Ingersoll-Rand.

First, as to the source of the right, “it is possible to conceive of this dispute as entirely contained

within the terms of the contract.” Ingersoll-Rand,

. The regulation that Defendants

allegedly violated requires that the basis for termination be spelled out in “the terms and conditions

of the Federal award.”

(a)(4); see also

§ 200.340(b). Thus, to determine

whether OJP violated § 200.340(a)(4), the court must look back to the awards themselves. It must

ask: Do the agreements contain a term permitting OJP to terminate the award for no longer

effectuating agency priorities, or is such provision absent? That is a classic contract question.

Although § 200.340(a) “might impose procedural requirements on the government having some

impact on the contract,” it “in no way creates the substantive right to the remedy [Plaintiffs]

seek[].” Spectrum Leasing,

. Put differently, Plaintiffs “right to the [ ] payments

arose only upon creation and satisfaction of its [grant award from] the government; in no sense did

it exist independently of that [award].”

.

The remedy sought also marks the claim as essentially contractual. Plaintiffs seek

continued payment of the grants—in other words, specific performance. “A request for specific

performance must be resolved by the Claims Court” when, as here, the source of right is

contractual. Ingersoll-Rand,

; Spectrum Leasing,

(“Spectrum seeks

the classic contractual remedy of specific performance.”); see also Transohio,

(explaining that the Supreme Court’s decision in Bowen did not overrule the D.C. Circuit’s “very

specific holdings that the APA does not waive sovereign immunity for contract claims seeking

specific relief”); U.S. Conf. of Catholic Bishops, 770 F. Supp. 3d at 162–64 (holding that claims

25 belonged in the Court of Federal Claims where the plaintiffs asked “to cancel the termination, pay

money due, and reinstate the contracts”).

Plaintiffs fail to grapple with Spectrum Leasing and Ingersoll-Rand. See, e.g., Tr. at 12:4–

17:5. Indeed, their papers nowhere cite, let alone seek to distinguish, those cases. Their leading

argument goes to the remedy prong of the inquiry, which is that they seek additional “non-

monetary relief that has ‘considerable value’ independent of any future potential for monetary

relief.” Pls.’ Reply in Supp. of Prelim. Inj. Mot. and Opp’n to Defs.’ Mot. to Dismiss, ECF No. 37

[hereinafter Pls.’ Reply & Opp’n], at 30 (quoting Kidwell v. Dep’t of Army,

(D.C.

Cir. 1995) and citing Crowley, 38 F.4th at 1107–08). But this case bears no resemblance to Crowley

and fails the Kidwell “considerable value” test.

Crowley involved audits by GSA of a contract between the plaintiff and the Department of

Defense, which resulted in notices of overcharge. Crowley, 38 F.4th at 1102–03. Crowley sought

a judgment (1) declaring GSA did not have statutory audit authority over the contract, (2) declaring

that the notices of overcharge were contrary to statute, and (3) enjoining GSA from additional

audits and issuing further notices. Id. at 1104. The D.C. Circuit found that there was considerable

independent value in preventing GSA from interfering with the contract. Id. at 1111. Furthermore,

it did not matter that money might flow from the government fisc from such a judgment. “Any

monetary recovery Crowley might be entitled to in the future, including in Claims Court, would

be entirely separate from the district court’s exercise of jurisdiction and award of the requested

declaratory and injunctive relief.” Id. (internal quotation marks and alterations omitted).

The same cannot be said here. The non-monetary relief that Plaintiffs seek does not have

“considerable value” apart from the “future potential for monetary gain.” Kidwell,

(internal quotation marks omitted). Plaintiffs ask the court (1) to “[d]eclare that OJP’s terminations

26 on the basis of Section 200.340(a)(4) are unlawful, including its interpretation that

(a)(4) allows OJP to terminate a grant based on a ‘change’ in agency priorities,” and

(2) to “[p]reliminarily and permanently enjoin Defendants . . . from terminating grants under

(a)(4) on the basis of a ‘change’ in agency priorities.” Compl. at 29–30. But

that non-monetary relief has little, if any, independent value from the future potential of monetary

recovery. Plaintiffs conceded as much at oral argument. They acknowledged that the value of the

non-monetary relief was the avoidance of future grant terminations that violate § 200.340(a)(4).

Tr. at 13:8-11 (stating that declaratory relief is necessary because if “the grants are reinstated and

the government does the exact same thing as it did before and terminates the grants, we’re back in

the same position moving forward”). That is not “considerable value” independent of the monetary

relief sought; it merely ensures that the monetary relief will continue.

In sum, because the source of the right and the relief requested for Plaintiffs’ contrary-to-

law APA claim is “at its essence” contractual, Plaintiffs have failed to establish this court’s

jurisdiction over this claim. Denial of preliminary injunctive relief and dismissal must follow.

V. THE MERITS

The court turns now to the merits of those claims over which it does have jurisdiction,

namely, Plaintiffs’ constitutional and ultra vires claims. To secure preliminary injunctive relief,

Plaintiffs must establish a “likelihood of success on the merits.” Aamer,

.

To defeat a motion to dismiss, the burden is lower. Plaintiffs need only state a claim for relief that

is “plausible on its face.” Sickle, 884 F.3d at 344–45 (quoting Iqbal,

). The court

27 keeps these different standards in mind when evaluating the pending motions. Cf. Food & Water

Watch, Inc. v. Vilsack,

(D.C. Cir. 2015). 3

A. Fifth Amendment Claims

Plaintiffs assert two Fifth Amendment claims. First, they contend that they “have a

constitutionally protected property interest in the funding they applied for, were awarded, and

currently rely on,” entitling them to due process before Defendants summarily terminated their

grants. Prelim. Inj. Mem. at 23; Compl. ¶¶ 84–85. To assert a claim pursuant to the Fifth

Amendment’s Due Process Clause, “a plaintiff must show (i) deprivation of a protected liberty or

property interest; (ii) by the government; (iii) without the process that is ‘due’ under the Fifth

Amendment.” NB ex rel. Peacock v. District of Columbia,

(D.C. Cir. 2015)

(internal citations omitted). Second, they contend that Defendants “violated the Due Process

Clause by terminating [their] grants in an unconstitutionally vague manner.” Prelim. Inj. Mem. at

24. They argue that “OJP’s use of Section 20.340(a)(4) to allow for the termination anytime it

‘changes’ agency priorities invites the very sort of arbitrary terminations that are at issue in this

case.” Id. at 25.

“The first inquiry in every due process challenge is whether the plaintiff has been deprived

of a protected interest in ‘liberty’ or ‘property,’” so the court begins there. See NB ex rel. Peacock,

(quoting Gen. Elec. Co. v. Jackson,

(D.C. Cir. 2010)). “[T]he

range of interests protected by procedural due process is not infinite.” Bd. of Regents of State Colls.

v. Roth,

(1972). As the D.C. Circuit has explained:

Whether a given statutory scheme gives rise to a protected interest depends on whether the authority promulgating the statute or

3 The court rejects Plaintiffs’ assertion that Defendants have somehow forfeited Rule 12(b)(6) arguments as to any claim. See Pls.’ Reply & Opp’n at 28 n.6. Defendants’ Rule 12(b)(6) arguments in opposition to injunctive relief are the same as those supporting dismissal. See Defs.’ Mot. to Dismiss at 2 (arguing that “each claim fails on its own terms and should be dismissed.”).

28 regulation has placed substantive limits on official discretion. Addressing the limitations necessary to support such an entitlement, the Court has stated that ‘the regulations [must] contain ‘explicitly mandatory language,’ i.e., specific directives to the decisionmaker that if the regulations’ substantive predicates are present, a particular outcome must follow.”

Tarpeh-Doe v. United States,

, 722–23 (D.C. Cir. 1990) (quoting Ky. Dep’t of

Corrections v. Thompson,

(1989)) (internal citation omitted).

Within the government contracting space, the D.C. Circuit has found that total debarment

from government contracting implicates a protected liberty interest, but it has never held that a

contractor has a property interest in expected payments. See, e.g., Conset Corp. v. Cmty. Servs.

Admin.,

(D.C. Cir. 1981); Reeve Aleutian Airways, Inc. v. United States,

(D.C. Cir. 1993); Com. Drapery Contractors, Inc. v. United States,

(D.C. Cir. 1998); see also Loc. 342, Long Island Pub. Serv. Emps., UMD, ILA, AFL-CIO v. Town

Bd. of Town of Huntington,

(2d Cir. 1994) (holding there is no protected

property interest where there is “nothing more than a simple contractual right to receive . . .

payments”). Indeed, “[o]utside of the employment context, courts have resisted application of

due-process principles to government contracts because with scores of millions of government

contracts in effect at any point in time, it is unimaginable that all government agencies would be

required to provide a hearing before they take any action that is arguably inconsistent with a

contract.” New Vision Photography Program, Inc. v. District of Columbia,

(D.D.C. 2014) (internal quotation marks, alteration, and citation omitted).

The crux of Plaintiffs’ claimed property interest is that federal regulations “place

substantive limitations on” Defendants’ ability to terminate the grant funds, thereby affording

Plaintiffs “a legitimate claim of entitlement, as to which the Due Process Clause affords

protection.” Prelim. Inj. Mem. at 23 (quoting NB ex rel. Peacock, 794 F.3d at 41–42); see also

29 Pls.’ Reply & Opp’n at 20. More specifically, they say that “2 C.F.R. § 200.340(a)—the governing

regulation specific to grant terminations—places substantive limitations on OJP’s discretion to

terminate the grants at issue.” Pls.’ Reply & Opp’n at 20.

But the regulation does no such thing. Section 200.340(a) simply lists four circumstances

in which a government agency “may” terminate a federal award. The regulation’s text is thus

permissive; it does not contain “explicitly mandatory language” that dictates an outcome if

“substantive predicates are present.” Tarpeh-Doe, 904 F.2d at 722–23 (quoting Ky. Dep’t of

Corrections,

). Further, the regulation itself is inert unless the agreement contains

the relevant termination provision.

(b) (“The Federal agency . . . must clearly

and unambiguously specify all termination provisions in the terms and conditions of the Federal

award.”). To the extent OJP was restricted in its ability to terminate grants, the source of such

constraint is the grant agreements themselves, not § 200.340(a). In that sense, Plaintiffs’ due

process claim “is substantively indistinguishable from a breach of contract claim.” Suburban

Mortg. Assocs. v. Dep’t of Housing & Urban Dev.,

, 1128 (Fed. Cir. 2007) (“[A]

claim that a government agency has violated a party’s right to due process by refusing performance

under a contract is substantively indistinguishable from a breach of contract claim.”).

Finally, the court agrees with the conclusion of another judge in this District who found no

property interest in a grant termination case because “Plaintiffs offer[ed] no reason to think their

contracts and grants . . . are different from the ‘millions of government contracts in effect at any

point in time’ to which courts seldom apply ‘due-process principles.’” Nat’l Urban League v.

30 Trump, --- F. Supp. 3d ----,

, at *18 (D.D.C. 2025) (quoting New Vision

Photography,

(citation omitted)). 4

Having failed to establish even a plausible property interest in the grant awards, Plaintiffs’

Fifth Amendment claims must be dismissed. See Hettinga v. United States,

, 479–80

(D.C. Cir. 2012) (identifying a “cognizable liberty or property interest” as “the threshold

requirement of a due process claim”); Nat’l Urban League,

, at *17 (observing

that “[a] void for vagueness challenge is, at bottom, a due-process claim, so Plaintiffs must show

that they were deprived of a constitutionally-protected property or liberty interest”) (internal

quotation marks and citation omitted).

B. Other Constitutional Claims

Plaintiffs’ remaining constitutional claim rests on “Congress’s ‘exclusive power over the

federal purse.’” Dep’t of Navy v. Fed. Lab. Rels. Auth.,

(quoting Rochester Pure

Waters Dist. v. EPA,

(D.C. Cir. 1992)). According to Plaintiffs, the grant

terminations violated the separation of powers, the Spending and Appropriations Clauses, and the

Take Care Clause. 5 Compl. ¶¶ 104–15.

“Under Article II of the Constitution . . . , the President must follow statutory mandates so

long as there is appropriated money available and the President has no constitutional objection to

4 The court respectfully disagrees with the few cases that have found that federal grantees “have a legitimate property interest in federal funds that Congress has already appropriated and that the [grantees] have accepted.” Cnty. of Santa Clara v. Trump,

(N.D. Cal. 2017), aff’d in part, vacated in part, remanded sub. nom. City & Cnty. of San Francisco v. Trump,

(9th Cir. 2018); see also Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump,

, 280 n. 10 (D. Md. 2025). In both cases, the courts relied on summary citations to Roth and other foundational Supreme Court precedent. Indeed, National Association of Diversity Officers made this observation in a footnote and merely accepted the plaintiffs’ arguments. See 767 F. Supp. 3d at 280 n.10. The order in that case was subsequently stayed by the Fourth Circuit. See Order, Doc. No. 29, Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 25-1189 (4th Cir. March 14, 2025). 5 At argument, Plaintiffs represented that its Spending and Appropriations Clauses and Take Care Clause claims are co-extensive with its separation of powers claim. See Tr. 47:11-23. The court thus considers these claims together. See Prelim. Inj. Mem. at 26–28.

31 the statute.” In re Aiken Cnty.,

; see also Youngstown Sheet & Tube Co. v. Sawyer,

(1952) (Jackson, J., concurring) (“When the President takes measures

incompatible with the expressed or implied will of Congress, his power is at its lowest ebb[.]”).

Thus, when Congress appropriates sums of money for certain purposes, the Executive must spend

it. See Train v. City of New York,

, 42–44 (1975); Anti-Deficiency Act, Pub. L. No. 97-

258,

(1982) (codified at

) (prohibiting executive officers from

holding appropriated funds in reserve except in certain circumstances). The President cannot

refuse to spend appropriated funds based on policy reasons alone, unless Congress explicitly

approves their recission. In re Aiken Cnty.,

, 261 n.1; see also Impoundment Control

Act,

Stat. 297 (1974) (appropriated funds “shall be made available for

obligation” absent congressional recission).

According to Plaintiffs, Defendants’ termination of hundreds of grants to the tune of $820

million constituted a “blanket refusal to spend appropriations.” See Prelim. Inj. Mem. at 26;

Compl. ¶¶ 110–15. But that is not the evidence before the court. Defendants are not refusing to

spend the $820 million in terminated grant awards; rather, they intend to re-obligate those funds

to other grantees. See Henneberg Decl. ¶ 26. Further, the awards are sourced to “no year”

appropriations, meaning Defendants are not required to expend the funds by the end of a fiscal

year.

; Consolidated Appropriations Act, 2024, 138 Stat. at 145; Consolidated

Appropriations Act, 2023,

Stat. 4459, 4534 (2023); Bipartisan Safer

Communities Act, 136 Stat. at 1338–39; Consolidated Appropriations Act, 2022, 136 Stat. at 123–

24; see also

(c), 20103(c)(1)(A) (congressionally created Crime Victims Fund

which is permanent and available for grants “without fiscal year limitation”). Defendants therefore

face no congressionally mandated deadline to identify and pay new grantees.

32 Plaintiffs push back against none of this. See Tr. at 32:8-21 (conceding the grant monies

are “no year” funds). For that reason alone, they have failed to establish a likelihood of success

on their separation-of-powers and related claims. See Harris Cnty.,

, at *9–10

(holding that the plaintiffs had failed to establish a likelihood of success on their separation of

powers claim where the congressional appropriation did not “limit agency discretion over how to

spend appropriated funds” and “plaintiffs have presented no evidence that this administration (or

for that matter, a future administration)” will not re-obligate the terminated grant funds).

Whether to dismiss these claims is trickier. Defendants rightly concede that they cannot

rely on the Henneberg Declaration on their Rule 12(b)(6) motion. Tr. at 82:22-24. So, OJP’s stated

intention to re-obligate the funds cannot be the basis for dismissal. That said, Plaintiffs still bear

the burden of pleading a plausible claim. And, in this context, the court thinks it is important that,

to survive a motion to dismiss, Plaintiffs must plead some facts that plausibly establish that OJP

will not reissue the awards to new grantees or that they will do so in a way inconsistent with the

appropriations statutes.

The complaint does not do so. The closest Plaintiffs come is an assertion contained in

paragraph 111. There, after recounting facts about one Plaintiff’s terminated funding, Plaintiffs

write: “But Congress’ command did not change, and Congress’ command left Defendants no

leeway to simply pocket the money.” Compl. ¶ 111. That statement, however, is a “bare

assertion[]” of fact and is “not entitled to be assumed true.” Iqbal,

. Nowhere else

does the complaint provide the “factual enhancement” necessary to support Plaintiffs’ spending-

related constitutional claims. Bell Atl. Corp. v. Twombly,

(2007). Accordingly,

the court will dismiss them.

33 C. Equitable Ultra Vires

That leaves Plaintiffs’ ultra vires claim. The court disposes of it quickly.

Ultra vires review is a type of nonstatutory review and is available where “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 v. Texas,

, 1776 (2025) (quoting Railway

Clerks v. Ass’n for Benefit of Non-contract Employees,

(1965)). Additionally,

ultra vires review is “unavailable if . . . a statutory review scheme provides aggrieved persons

‘with meaningful and adequate opportunity for judicial review,’ or if a statutory review scheme

forecloses all other forms of judicial review.”

(quoting Board of Governors, FRS v. McCorp

Financial, Inc.,

(1991)).

Plaintiffs’ ultra vires claim fails at these thresholds. They do not allege that Defendants

acted “entirely in excess of” their delegated powers and contrary to a specific prohibition in any

appropriations statute. See Fed. Express Corp. v. United States Dep’t of Com.,

(D.C. Cir. 2022) (“[U]ltra vires claimants must demonstrate that the agency has plainly and openly

crossed a congressionally drawn line in the sand.”). Further, the ultra vires claim is simply a

variant of their other claims, for which there are adequate forms of judicial review both in this

court and the Court of Federal Claims. See Compl. ¶ 102 (alleging that Defendants “lacked

constitutional, statutory, and regulatory authority to issue or implement the en masse termination

of the Plaintiffs’ and putative class members’ grant awards”). Accordingly, their ultra vires claim

is dismissed.

VI. CONCLUSION

There is no doubt in the court’s mind that OJP’s award terminations were unfair and

indiscriminate. When a government agency, especially the Department of Justice, agrees to fund

34 private organizations to carry out a public purpose, such organizations expect regularity and

respectful treatment. That is not what occurred here. The court laments that the limits of its own

power prevent it from helping Plaintiffs and similarly situated grantees. But the court cannot cure

an injustice by exceeding its own authority.

Accordingly, Plaintiffs’ Motion for Preliminary Injunction, ECF No. 3, is denied, and

Defendants’ Motion to Dismiss, ECF No. 27, is granted. Plaintiffs’ Motion for Class Certification,

ECF No. 2, is denied as moot. A final, appealable order accompanies this opinion.

Dated: July 7, 2025 Amit P. Mehta United States District Judge

35