In a decision that may prove catastrophic for the American library community, a federal judge has denied a preliminary injunction in American Library Association v. Sonderling, a case seeking to halt the demolition of the Institute of Museum and Library Services. On June 6, Judge Richard J. Leon of the U.S. District Court of the District of Columbia filed a memorandum order stating that the plaintiffs, the ALA and the American Federation of State, County, and Municipal Employees (AFSCME), had failed to establish “a substantial likelihood of success on the merits.” The court's interpretation of the case is sure to frustrate librarians, as the judge determined that the lawsuit is ultimately centered on contractual, and not constitutional, issues.

The ALA and AFSCME allege in the lawsuit that acting IMLS director Keith Sonderling—who was appointed by President Donald Trump to lead the agency—unlawfully terminated established IMLS grants that had been guaranteed by Congressional appropriation. But rather than reading the case as a matter of executive branch overreach by the defendants, as ALA and AFSCME contend and as the judge in the parallel Rhode Island v. Trump case agreed, Judge Leon’s ruling focused on the matter of delayed or terminated IMLS grants as an issue of breach of contract. That effectively sets aside any claims related to constitutionality.

“The heart of these allegations is that defendants have failed to comply with Congress's statutory mandates for IMLS,” Leon wrote. Congress appropriated $294,800,000 to IMLS through September 30 of this year, and ALA alleges that it is owed $2.5 million to cover six discretionary grants. Pointing to those debts, the judge agreed with the defendants that the case might need to be taken up in the U.S. Court of Federal Claims under the Tucker Act, which allows for claims of more than $10,000 against the federal government but restricts them from being brought in district court. “If the Tucker Act applies to plaintiffs' claims,” Leon added, “this Court has no jurisdiction.”

ALA declared that the decision allows the Trump administration to proceed with efforts to destroy the IMLS. “The extent to which some libraries have already canceled services and programming—and even lost staff in some cases—is evidence of the importance of IMLS,” said ALA president Cindy Hohl, in a statement. “ALA will not rest until libraries in every state receive the funding promised and IMLS is back in full force to meet the information needs of all Americans.”

Democracy Forward and Gair Gallo Eberhard LLP brought the case on behalf of ALA and AFSCME in April, in response to a White House executive order calling for the “reduction of the federal bureaucracy” that resulted in the delay or termination of grants, the firing or furloughing of most agency employees, and the termination of the IMLS board. In May, Judge Leon granted a temporary restraining order, preventing a reduction in force. When the TRO expired, ALA and AFSCME asked the court either to renew it or come to a decision about the preliminary injunction. With this new ruling, the TRO is rendered moot.

Although the plaintiffs insist that they “do not assert any contract claims against the government,” the judge saw parallels between this case and others in which defendants have invoked the Tucker Act. “The contours of the Tucker Act are shifting,” Judge Leon wrote, referring to pending cases that include Widakuswara v. Lake, in which Voice of America journalists are suing the Trump administration in D.C. district court, and the Supreme Court’s stay pending appeal in Department of Education v. California, which contests millions of dollars in terminated grants. In Department of Education v. California, a district court ruled that grant terminations violated the Administrative Procedure Act, which governs how lawful federal procedures must be carried out, but SCOTUS has suggested that the case is primarily about payment due.

Judge Leon left open a pathway to appeal, writing in a footnote that “the Court is not ruling that plaintiffs will be unable to show this Court has jurisdiction, and instead only finds that plaintiffs are not, at this early stage, able to show a substantial likelihood of success in establishing this Court’s jurisdiction”—effectively sending them back to the drawing board. In his conclusion, he wrote that his order “does not prohibit plaintiffs from renewing their motion or succeeding on a dispositive motion depending on further developments in the facts and the law.”

The parties are ordered to “file a joint status report proposing how this case should proceed” by June 13.

Contractual and constitutional matters

The judge’s sense that ALA v. Sonderling could require “a quintessentially contractual remedy”—and his observation that the lawsuit disputes the termination of the ALA's $2.5 million in grant funding—indicates key distinctions between ALA v. Sonderling and a parallel IMLS-related case, Rhode Island v. Trump. The D.C. court memorandum appeared just one day after the U.S. District Court of Rhode Island handed plaintiffs a victory by declining to grant defendants a stay pending appeal. The preliminary injunction in Rhode Island is delivering some of the results that ALA and AFSCME seek in their lawsuit.

In Rhode Island v. Trump, Chief Judge John J. McConnell Jr. ordered the preliminary injunction in favor of 21 states’ attorneys general, who sought to reverse the dismantling of three federal agencies including IMLS. The judge found that the administration acted “without proper procedures,” violating the separation of powers, the Administrative Procedure Act, and the Take Care Clause. IMLS complied with the order by processing and disbursing grants, bringing employees back to the office, and scrapping plans to move the agency into a smaller office space in the Department of Labor.

On June 5, when he declined the stay pending appeal, Judge McConnell noted that the preliminary injunction “does not apply to ‘personnel decisions’ ” or “affect funding actions based on ‘non-compliances with applicable grant or contract terms.’ ” Although Department of Justice attorneys tried to argue that the Rhode Island case belonged in the Court of Federal Claims—the argument that swayed Judge Leon in D.C.—Judge McConnell focused his decision on unlawful action by the executive branch.

AFSCME president Lee Saunders noted as much in a statement, pointing to the McConnell’s decision to in the Rhode Island case. “Our fight to protect our nation’s libraries and museums will continue,” he said, in a statement. “While we disagree with today’s decision, the fight is not yet lost.”