Porwancher v. National Endowment for the Humanities

• Court: District Court, District of Columbia
• Decided: July 25, 2025
• Docket: Civil Action No. 2025-1180
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ANDREW PORWANCHER,

Plaintiff

v. Civil Action No. 1: 25-cv-1180 (CJN)

NATIONAL ENDOWMENT FOR THE HUMANITIES, et. al,

Defendants.

MEMORANDUM OPINION

Plaintiff Andrew Porwancher is a professor of history at Arizona State University. In August

2024 he received a grant from the National Endowment for the Humanities that would have funded

twelve months of full-time research for his upcoming book. In April 2025, however, NEH terminated

Porwancher’s grant (along with many others). Porwancher claims that this termination was unlawful

for various reasons and, as most relevant here, seeks a preliminary injunction preventing the

government from treating his grant as terminated. For the reasons discussed below, the Court grants

in part Porwancher’s Motion for Preliminary Injunction, ECF 9.

I. Background

The National Endowment for the Humanities was created by statute in 1965. See National

Foundation on the Arts and the Humanities Act, Pub. L. 89-209, 20 U.S.C. § 951(1) (Sept. 29, 1965).

That statute authorizes the NEH’s “Chairperson, with the advice of the National Council on the

Humanities . . . to enter into arrangements, including contracts, grants, loans, and other forms of

assistance,” to carry out various specified purposes, including to “initiate and support research and

programs to strengthen the research and teaching potential of the United States in the humanities by

making arrangements with individuals or groups to support such activities,” as well as to “initiate 1 and support programs and research which have substantial scholarly and cultural significance and

that reach, or reflect the diversity and richness of our American cultural heritage, including the

culture of, a minority, inner city, rural, or tribal community.” Id. § 956(c). The grants are prestigious

and difficult to win; in 2023, of 283 Public Scholar applicants, only 25 received a grant. ECF 8 at

10.

The NEH is a federal executive agency—and is governed by a set of regulations known as

Uniform Administrative Requirements. 2 C.F.R. §§ 200.0 et seq. The version of those regulations

relevant here was issued on November 12, 2020. Under that version, absent consent, the NEH can

terminate an award if: (1) the recipient “fails to comply with the terms and conditions of [the] Federal

award,” (2) “pursuant to termination provisions included in the Federal Award,” or (3) “to the

greatest extent authorized by law, if an award no longer effectuates the program goals or agency

priorities.” ECF 1 at 4; 2 C.F.R. § 200.340(a) (2020).

The regulations also contain a specific termination procedure. The NEH must “determine

that noncompliance cannot be remedied by imposing additional conditions” on the award. 2 C.F.R.

§ 200.339(c) (2020). The NEH also “must provide the [recipient] an opportunity to object and

provide information and documentation challenging the suspension or termination action, in

accordance with written processes and procedures published by [NEH].” Id § 200.342. And the

NEH “must provide . . . a notice of termination” that “must” furnish multiple pieces of information,

id § 300.341, including that: the “termination decision will be reported to [an] OMB [database]”;

the termination decision “will be available in the OMB [database] for a period of five years”; other

agencies that consider future grant applications from the recipient “must consider [the termination

decision] in judging whether the [recipient] is qualified to receive” another federal award; the

recipient of the terminated award “may comment on any information the OMB [database] contains

about the [recipient] for future consideration by Federal awarding agencies”; and “Federal awarding

2 agencies will consider [the recipient's] comments when determining whether the [recipient] is

qualified for a future Federal award.” Id.

As noted above, Porwancher is a professor of history at Arizona State University. ECF 9-1 at

5. In August 2024, the NEH selected him for a Public Scholar Grant, which would have provided him

$60,000 to fund twelve months of full-time research on his upcoming book regarding the trial of a

nineteenth century Jewish convert. Id. at 6. Because the grant required that Porwancher “forgo other

major activities, including teaching” during that twelve-month period, he received permission from

ASU to take leave from his teaching and service duties during the upcoming academic year. Id.

In early April 2025, the NEH terminated nearly all of the grants it had issued in 2024. ECF

9-1 at 8. As for Porwancher in particular, on April 3, 2025, he received a termination notice,

purportedly from acting NEH director Michael McDonald, from a nongovernment Microsoft email

account. ECF 9-14 at 2. The email included a general statement that Porwancher’s book project no

longer effectuated the agency’s priorities or the new administration’s agenda. ECF 9-15. On April

4, Porwancher asked the NEH about how he might appeal that decision; the agency responded that

no such process existed. ECF 9-1 at 9.

Porwancher initiated this suit less than two weeks later. ECF 1. Following the filing of an

amended complaint, he asserts various claims regarding the termination of his grant, including that

it violated the Administrative Procedure Act because it was arbitrary and capricious, contrary to law,

violated his due process rights, violated the Spending Clause of Article I of the Constitution, and was

ultra vires. ECF 8 at 23–26. That same day, Porwancher also moved for a preliminary injunction.

He requests that the Court prohibit reallocation of his grant funds, enjoin the government from

enforcing the termination notice, require the government to reinstate the grant, and prohibit the

government from terminating the grant in the future unless done in a manner compliant with all

applicable laws and regulations. ECF 8 at 27.

3 II. Legal Standard

To obtain a preliminary injunction, of course, “the moving party must show (1) a substantial

likelihood of success on the merits, (2) that it would suffer irreparable injury if the injunction were

not granted, (3) that an injunction would not substantially injure other interested parties, and (4) that

the public interest would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v.

England, 454 F.3d 290, 297 (D.C. Cir. 2006). The first two factors carry the most weight, and where

a plaintiff can show “neither harm nor success, no relief is warranted.” Nat’l Ass’n of the Deaf v.

Trump, 486 F. Supp. 3d 45, 51 (D.D.C. 2020). When the movant seeks an injunction against the

government, the final two factors are analyzed as one. See, e.g., Pursuing Am.’s Greatness v. Fed.

Election Comm’n, 831 F.3d 500, 511 (D.C. Cir. 2016).

III. Analysis

A. Likelihood of Success on the Merits

1. Jurisdiction

With respect to likelihood of success on the merits, the government’s primary argument is that

Porwancher cannot demonstrate he is likely to succeed on any of his claims because the Court lacks

jurisdiction. In particular, the government argues, the Court lacks jurisdiction “because the Tucker

Act vests the Court of Federal Claims with exclusive jurisdiction over such claims based on contracts

with the United States.” ECF 15 at 4 (citing 28 U.S.C. § 1491(a)(1)).

To be sure, Porwancher’s claims do, at a glance, look like contract claims. But the Court of

Appeals 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.’” Crowley Gov’t Servs., Inc. v. GSA, 38 F.4th 1099, 1105 (D.C. Cir. 2022). Instead, whether the

Court has jurisdiction (or, more precisely at this stage, whether Porwancher is likely to establish that

4 the Court has jurisdiction) is a question that must be analyzed “in light of the . . . claims the [plaintiff]

actually brings.” de Csepel v. Republic of Hungary, 714 F.3d 591, 598 (D.C. Cir. 2013).

Under the Court of Appeals’ “longstanding test,” the question is whether the claims

Porwancher asserts are “at [their] essence… contract claim[s].” Crowley, 38 F.4th at 1106. And that

question hinges on both “the source of the rights upon which the plaintiff bases [his] claims” and “the

type of relief sought (or appropriate).” Harris Cnty., Texas v. Kennedy, WL 1707665 (D.D.C. June

17, 2025); see also American Center For International Labor Solidarity v. Lori Chavez-Deremer,

2025 WL 1795090, (D.D.C. June 30, 2025).

As to the source of the rights at issue, where a dispute is “entirely contained within the terms

of… [the] contract,” that dispute is essentially contractual. Ingersoll-Rand Co. v. United States, 780

F.2d 74, 78 (D.C. Cir. 1985). Where the dispute turns on more than just contractual terms, though,

those parts of the dispute that reach beyond the contract may be resolvable by a federal district court.

See, e.g., Cemex Inc. v. Dep’t of the Interior, 560 F. Supp. 3d 268, 276 & n.4 (D.D.C. 2021). At least

one of Porwancher’s claims seems to be non-contractual in this sense. In Count II of his Amended

Complaint, Porwancher alleges that the NEH failed to follow its own procedural regulations in how it

terminated his grant—including (among other reasons) by failing to provide him an appropriate

explanation for the termination and by failing to provide him the ability to appeal it. See Am. Compl.

(alleging that the termination was contrary to law under § 706(2)(A) of the APA because it violated

the procedures contained in the regulations); see also 2 C.F.R. §§ 200.340(a), 200.339(c), 200.342,

and 300.341. None of those procedural requirements is contained within the four corners of

Porwancher’s grant; rather, they apply regardless of the grant’s language.

That type of claim strikes the Court as different in kind from substantive claims regarding the

termination of a grant, which seem more bound to a grant’s terms and whether or not a particular

termination is lawful in light of those terms. In this case, for example, such a claim would likely

5 require an analysis of the grant itself, the permissible grounds on which the government could (and

could not) terminate it, the government priorities reflected in the grant, and whether Porwancher’s

expected work is consistent with those priorities. That would be similar to the sort of claim at issue

in Ingersoll-Rand; the question there “could [have been] phrased as whether the contract forbids

termination under [specific] conditions,” and that was enough for the dispute to be “entirely

contained” within the contract’s terms. 780 F.2d at 78. In contrast, Porwancher’s claim in Count II—

that the NEH violated the procedures to which it is bound by its own regulations—does not turn at all

on the terms of the grant or the other issues noted above. 1

But that doesn’t end the matter; the second part of the inquiry looks to “the type of relief sought

(or appropriate).” Harris Cnty., 2025 WL 1707665, at *4. As a starting point, 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 v. Massachusetts, 487 U.S. 879, 910 (1988). Instead, the “crux”

of this question “boils down to whether the plaintiff effectively seeks to attain monetary damages in

the suit.” Crowley, 38 F.4th at 1107. Porwancher disavows any intention to seek monetary damages

in the traditional sense, and the government doesn’t really contest that point. Indeed, it seems unlikely

that any court (whether this one or the Court of Federal Claims) could award him a damages judgment

without the various conditions included in his grant. See Nat’l Ctr. for Mfg. Sciences (NCMS) v. U.S.,

114 F.3d 196, 201–02 (Fed. Cir. 1997).

Even so, the remedies Porwancher seeks fall on a spectrum. On the one hand, he seeks an

1 To be sure, in Dep't of Educ. v. California, 145 S. Ct. 966, 969 (2025), the Supreme Court held that a district court likely lacked jurisdiction (and therefore improperly ordered preliminary relief) over certain APA claims in the context of a government grant. But the Court “had no occasion to consider jurisdiction over a contrary-to-law claim, because the district court did not reach it when granting the TRO.” Vera Institute of Justice, et al., Plaintiffs, v. U.S. Department of Justice, et al., No. 25-CV-1643 (APM), 2025 WL 1865160, at *12 (D.D.C. July 7, 2025) (citing California v. Dep’t of Educ., 769 F. Supp. 3d 72, 75 (D. Mass. 2025)).

6 injunction that would require reinstatement of his grant, which is quite close to the Court requiring the

NEH to make a payment to him. ECF 8 at 27. On the other hand, he asks the Court to “set aside” the

termination, 5 U.S.C. § 706(2)(A), on the ground that the government failed to follow its own

procedures. ECF 8 at 27. To be sure, even that relief might result in the payment of Porwancher’s

grant. But not necessarily; after all, an order vacating the termination on that basis—together with an

order requiring the government not to commit those procedural violations again—would leave the

government free to reconsider the termination so long as it does so in a procedurally appropriate

manner. In this sense, at least, what Porwancher really seeks is “prospective, nonmonetary relief to

clarify future obligations.” Chavez-Deremer, 2025 WL 1795090 at 18* (quoting Me. Cmty. Health v.

United States, 590 U.S. 296, 327 (2020). 2

In sum, then, the Court concludes that Porwancher is likely to succeed in establishing that the

Court has jurisdiction over at least one of his claims (that the NEH violated its own procedural

regulations for terminating his grant) and for at least some of the remedies he seeks (vacatur and an

order requiring the NEH to comply with those procedural regulations in the future). 3

2 But is that essentially the same as the equitable contract remedy of specific performance? The Court thinks not, as that remedy “is available only to protect contract rights” and cannot be ordered “unless there has been a breach of contract.” 71 Am. Jur. 2d Specific Performance § 1 (2025); Restatement (Second) of Contracts § 357 cmt. a (Am. L. Inst. 1981). Here, again, Porwancher does not claim that the government has breached its grant with him, and none of his claims turn on whether the government in fact has breached. Whereas specific performance demands behavior in keeping with contractual terms, Porwancher demands compliance with a regulatory regime. Moreover, as the Court of Appeals has stated, 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, Inc. v. Lewis, 672 F.2d 959, 967 (D.C. Cir. 1982). 3 The government also argues that the Court lacks jurisdiction over Porwancher’s APA claims because the challenged action was committed to agency discretion by law. But as Porwancher notes, that statute only commits the initial awarding of grants to NEH’s discretion. When it comes to the process for termination, in contrast, the NEH has cabined its own discretion through various regulations discussed above. Those regulations provide meaningful standards for a court to employ.” Pol’y & Rsch., LLC v. HHS, 313 F.Supp.3d 62, 76 (D.D.C. 2018). 7 2. Merits

As for the merits, Porwancher has demonstrated he is likely to succeed on his claim that, in

terminating his grant, the NEH failed to comply with the process expressly required by the applicable

regulations. Those regulations required that the NEH provide Porwancher with a notice stating “that

. . . [t]he termination decision will be reported to the OMB–designated integrity and performance

system . . . [and that] the information will be available . . . for a period of five years[.]” 2 C.F.R. §

200.341(b)(1), (2) (2020). The termination letter provided no such information. The notice was

supposed to indicate “that noncompliance cannot be remedied by imposing additional conditions" on

the award. 2 C.F.R. § 200.339(c) (2020). It didn’t. And the NEH was supposed to provide

Porwancher with a right to appeal. 2 C.F.R. § 200.342. It told him there was no such process. ECF

9-1 at 9.

In fact, the NEH’s communication to Porwancher candidly admitted that these procedural

requirements weren’t met, stating: “The termination of your grant represents an urgent priority for the

administration, and due to exceptional circumstances, adherence to the traditional notification process

is not possible.” ECF 9-15. This frank admission, together with the essentially undisputed facts, show

that Porwancher has a high likelihood of success on his claim that the NEH failed to follow its own

regulations. So too does the lack of a hearing or similar process. The NEH was required to provide

“an opportunity to object and provide information and documentation challenging the . . .

termination[.]” 2 C.F.R. § 200.342 (2020). The NEH never gave Porwancher that opportunity. And

when he expressly asked about the possibility of an internal appeal, the agency informed him that it

was “unable to offer [him] a means of dispute resolution.” ECF 9-17.

B. Irreparable Injury

Turning to irreparable harm, Porwancher argues that, in the absence of a preliminary

injunction, he would be unable to take leave this academic year to work on his book, ECF 9-1 at 1–2;

8 would lose the prestige of the NEH grant and the various career benefits that would flow from it

(including “accelerated publication of his book . . . increased mobility on the job market, speaking

engagements, possibly book prizes, and a merit-based raise.”), id. at 2; would be forced either to teach

classes in during fall semester 2025 on short notice or to use up both of his available “course releases”

(essentially, passes that let him opt out of teaching a certain class), id.; and could suffer harm to his

chances of getting a prestigious Fulbright Grant for various reasons, id.

The government argues that these harms are either insubstantial or speculative. And the Court

agrees in part. For example, the career benefits that might flow from the prestige of receiving this

NEH grant seem potentially speculative or merely delayed. After all, Porwancher might get a

Fulbright even without the grant (or he might not get a Fulbright even with it). And he doesn’t really

articulate why the delayed prestige of receiving an NEH grant at the end of this case (if he is

successful) would mean he would lose certain opportunities only available to him now.

But Porwancher has established more than that. Absent a preliminary injunction, he will either

have to teach two history classes rather than write his book, or clear the history courses from his

schedule by using his two “course releases”—exemptions from semesterly teaching duties that are,

apparently, limited and coveted resources for ASU professors. ECF 9-1 at 2. Although it’s a close

call, the Court concludes that these harms—which are not rebutted by the government, and which are

not speculative—are just enough to warrant injunctive relief. The lack of a grant will set Porwancher

back in terms of time and prestige that he cannot get back. And these losses, so far as the Court can

tell, cannot be redressed by an award of monetary damages against the government.

C. Substantial Injury to Other Parties and The Public Interest

The final two factors (which merge when the government is a party) also favor Porwancher.

“It is well established that the Government cannot suffer harm from an injunction that merely ends an

unlawful practice.” C.G.B. v. Wolf, 464 F. Supp. 3d 174, 218 (D.D.C. 2020) (quotation omitted).

9 Likewise, “[t]here is generally no public interest in the perpetuation of unlawful agency action.”

League of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016). “To the contrary,

there is substantial public interest in having governmental agencies abide by the federal laws that

govern their existence and operations.” Id. The Court is not moved by the government’s argument

that “the injunction Plaintiff seeks would disrupt the NEH’s efforts to implement the President’s

directives while complying with the agency’s statutory obligations.” ECF 15 at 16. The Court’s

preliminary injunction is narrow; it prevents the government from treating Porwancher’s grant as

terminated because the government failed to follow its own procedural regulations. The injunction

does not prevent the government from taking further action in conformity with those regulations.

IV. Conclusion

For the foregoing reasons, the Plaintiff’s Motion for a Preliminary Injunction, ECF 9, is

GRANTED IN PART. A separate order will accompany this opinion.

DATE: July 25, 2025 CARL J. NICHOLS United States District Judge