Brief of respondents Janet L. Yellen, Secretary of the Treasury, et al. in opposition, Ohio v. Yellen, No. 22-880 (U.S.) (May 15, 2023)

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A Brief for the Respondents in Opposition in Ohio v. Janet L. Yellen, Secretary of the Treasury, et al., No. 22-880, on petition for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit, dated May 2023. The Question Presented asks whether federal courts have Article III jurisdiction over Ohio's suit seeking to enjoin the Secretary of the Treasury from enforcing a hypothetical interpretation of the offset provision that the Treasury Department has disavowed. The brief states that the court of appeals vacated the injunction for lack of Article III jurisdiction. It argues that the Court would lack jurisdiction to reach the merits and concludes that the petition for a writ of certiorari should be denied.

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“Brief of respondents Janet L. Yellen, Secretary of the Treasury, et al. in opposition, Ohio v. Yellen, No. 22-880 (U.S.) (May 15, 2023).” Original at www.supremecourt.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/brief-of-respondents-janet-l-yellen-secretary-of-the-treasury-et-al-in-90f9e47acd/, SHA-256 9db0144df99aae13c25a993dd082b4b12ba29753ea764fdd1f0547e3cec969ca.

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No. 22-880

In the Supreme Court of the United States
OHIO, PETITIONER
v.
JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

ELIZABETH B. PRELOGAR
Solicitor General
Counsel of Record
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
ALISA B. KLEIN
DANIEL WINIK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217
QUESTION PRESENTED
The American Rescue Plan Act of 2021, Pub. L. No.
117-2, Tit. IX, Subtit. M, 135 Stat. 223 (42 U.S.C. 802
et seq.) provided nearly $200 billion in new federal
grants to help States mitigate the fiscal effects of the
COVID-19 pandemic. 42 U.S.C. 802(a)(1) and (b)(3)(A)
(Supp. III 2021). The Act gives States considerable
flexibility in using the funds for multiple general pur-
poses but provides as a corollary that a State “shall not
use the funds * * * to either directly or indirectly offset
a reduction in the net tax revenue of such State” result-
ing from changes in state tax law during the covered pe-
riod. 42 U.S.C. 802(c)(2)(A) (Supp. III 2021) (the offset
provision). Shortly after the Act’s passage, petitioner
Ohio sued the Secretary of the Treasury, seeking to en-
join the Secretary from enforcing the offset provision in
a manner that would “amount[] to a prohibition on tax
cuts.” Pet. App. 2a. After the district court granted
Ohio’s requested injunction, the court of appeals va-
cated the injunction for lack of Article III jurisdiction,
reasoning that Ohio had premised its asserted injury on
a “broad” reading of the offset provision that the Treas-
ury Department has now “repeatedly disavowed” in its
regulations. Id. at 17a. The question presented is:
Whether federal courts have Article III jurisdiction
over Ohio’s suit seeking to enjoin the Secretary of the
Treasury from enforcing a hypothetical interpretation
of the offset provision that the Treasury Department
has disavowed.

(I)
TABLE OF CONTENTS
Page
Opinions below .............................................................................. 1
Jurisdiction .................................................................................... 1
Statement ...................................................................................... 2
Argument....................................................................................... 8
Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:
Arizona v. Yellen, 34 F.4th 841 (9th Cir. 2022) ............ 12, 13
Bell v. New Jersey, 461 U.S. 773 (1983) .............................. 10
California v. Texas, 141 S. Ct. 2104 (2021) ......................... 11
City of Austin v. Reagan Nat’l Adver. of Austin,
LLC, 142 S. Ct. 1464 (2022)................................................ 16
Kentucky v. Yellen:
54 F.4th 325 (6th Cir. 2022) ...................................... 13, 14
No. 21-6108, 2023 WL 3221058 (May 3, 2023) .............. 13
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .... 11, 12
Missouri v. Yellen:
39 F.4th 1063, 1069 (8th Cir. 2022),
cert. denied, 143 S. Ct. 734 (2023) ........................ 7, 11
143 S. Ct. 734 (2023) .......................................................... 8
Steel Co. v. Citizens for a Better Env’t,
523 U.S. 83 (1998) ............................................................... 15
Susan B. Anthony List v. Driehaus,
573 U.S. 149 (2014).......................................................... 9, 15
TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) ... 8, 12
United States v. Sanchez-Gomez,
138 S. Ct. 1532 (2018) ......................................................... 12
West Virginia v. U.S. Department of the Treasury,
59 F.4th 1124 (11th Cir. 2023) ..................................... 14, 15

(III)
IV

Cases—Continued: Page
Wisniewski v. United States, 353 U.S. 901 (1957) ............. 13
Zivotofsky v. Clinton, 566 U.S. 189 (2012) .......................... 16
Constitution, statutes, and regulations:
U.S. Const. Art. III ............................................... 8, 11, 12, 15
American Rescue Plan Act of 2021, Pub. L. No.
117-2, Tit. IX, Subtit. M, 135 Stat. 223
(42 U.S.C. 802 et seq.) ........................................................... 2
42 U.S.C. 802 (Supp. III 2021) ................................. 2, 3, 5
42 U.S.C. 802(a)(1) (Supp. III 2021) ................................ 2
42 U.S.C. 802(b)(3)(A) (Supp. III 2021) .......................... 2
42 U.S.C. 802(c) (Supp. III 2021) ................................. 2, 3
42 U.S.C. 802(c)(1) (Supp. III 2021) ................................ 2
42 U.S.C. 802(c)(2) (Supp. III 2021) ............................ 2, 9
42 U.S.C. 802(c)(2)(A) (Supp. III 2021) ........................... 3
42 U.S.C. 802(c)(2)(B) (Supp. III 2021) ........................... 2
42 U.S.C. 802(d) (Supp. III 2021) .............................. 5, 10
42 U.S.C. 802(d)(1) (Supp. III 2021) ................................ 3
42 U.S.C. 802(d)(2) (Supp. III 2021) .......................... 8, 10
42 U.S.C. 802(e) (Supp. III 2021) ..................................... 3
42 U.S.C. 802(e)(1) (Supp. III 2021) ................................ 3
42 U.S.C. 802(e)(2) (Supp. III 2021) ................................ 3
42 U.S.C. 802(f ) (Supp. III 2021) ................................. 3, 6
42 U.S.C. 802(g)(1) (Supp. III 2021) ................................ 3
31 C.F.R.:
Section 35.8(b).................................................................... 4
Section 35.8(b)(4) ............................................................... 4
Section 35.8(b)(4)(i) ........................................................... 4
Section 35.8(b)(4)(ii)(A) ..................................................... 5
V

Miscellaneous: Page
Coronavirus State and Local Fiscal Recovery
Funds:
86 Fed. Reg. 26,786 (May 17, 2021) ........................... 4, 10
87 Fed. Reg. 4338 (Jan. 27, 2022)................................. 4, 5
USASpending.gov, Direct Payment Summary,
https://www.usaspending.gov/award/ASST_NON_
SLFRP0130_2001 (last visited May 15, 2023) ................... 6
In the Supreme Court of the United States
No. 22-880
OHIO, PETITIONER
v.
JANET L. YELLEN, SECRETARY OF THE TREASURY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-24a)
is reported at 53 F.4th 983. The opinion and order of
the district court entering a permanent injunction (Pet.
App. 25a-78a) is reported at 547 F. Supp. 3d 713. The
opinion and order of the district court denying a prelim-
inary injunction (Pet. App. 79a-116a) is reported at 539
F. Supp. 3d 802.
JURISDICTION
The judgment of the court of appeals was entered on
November 18, 2022. Justice Kavanaugh extended the
time within which to file a petition for a writ of certiorari
to and including April 17, 2023. The petition for a writ
of certiorari was filed on March 10, 2023. The jurisdic-
tion of this Court is invoked under 28 U.S.C. 1254(1).

(1)
2
STATEMENT
1. In the American Rescue Plan Act of 2021 (ARPA),
Pub. L. No. 117-2, Tit. IX, Subtit. M, 135 Stat. 223 (42
U.S.C. 802 et seq.), Congress established a Coronavirus
State Fiscal Recovery Fund. 42 U.S.C. 802.1 The Fund
provided nearly $200 billion in new federal grants to
help States and the District of Columbia “mitigate the
fiscal effects” of the COVID-19 pandemic. 42 U.S.C.
802(a)(1); see 42 U.S.C. 802(b)(3)(A).
Section 802(c) establishes parameters for States’
“Use of funds.” 42 U.S.C. 802(c)(1) (emphasis omitted).
Section 802(c)(1) provides that States may use fiscal re-
covery funds to cover broadly defined categories of
costs incurred through December 31, 2024, including:
providing assistance to households, businesses, and in-
dustries affected by the pandemic; providing premium
pay to workers performing essential work during the
pandemic; paying for state government services to the
extent of revenue losses due to the pandemic; and mak-
ing necessary investments in water, sewer, or broad-
band infrastructure. Ibid.
As a corollary, in order to ensure that States use the
funds for the general purposes that Congress specified,
Section 802(c)(2) establishes two “restriction[s] on [the]
use” of fiscal recovery funds. 42 U.S.C. 802(c)(2) (em-
phasis omitted). One is that a State may not deposit the
fiscal recovery funds “into any pension fund.” 42 U.S.C.
802(c)(2)(B). The other, the provision at issue here, pro-
vides that:
A State or territory shall not use the funds provided
under this section * * * to either directly or

1
All references to 42 U.S.C. 802 are to the most up to date version
found in Supp. III 2021.
3

indirectly offset a reduction in the net tax revenue of
such State or territory resulting from a change in
law, regulation, or administrative interpretation dur-
ing the covered period that reduces any tax (by
providing for a reduction in a rate, a rebate, a deduc-
tion, a credit, or otherwise) or delays the imposition
of any tax or tax increase.
42 U.S.C. 802(c)(2)(A). The “covered period” began on
March 3, 2021, and ends on the last day of the state fis-
cal year “in which all funds received by the State * * *
have been expended or returned to, or recovered by”
the Treasury Department. 42 U.S.C. 802(g)(1).
A State can receive its grant of fiscal recovery funds
after certifying to the Treasury Department that it “re-
quires the payment * * * to carry out the activities
specified in” Section 802(c) and “will use any payment
* * * in compliance with” that provision. 42 U.S.C.
802(d)(1). If a State does not use its fiscal recovery
funds in compliance with Section 802(c), the Treasury
Department may require the State to repay “an amount
equal to the amount of funds used in violation of” Sec-
tion 802(c). 42 U.S.C. 802(e). “[I]n the case of a viola-
tion of” the offset provision, the Treasury Department
may require a State to repay the lesser of “the amount
of the applicable reduction to net tax revenue attribut-
able to such violation” and the total amount of fiscal re-
covery funds the State received. 42 U.S.C. 802(e)(1);
see 42 U.S.C. 802(e)(2).
2. Congress authorized the Treasury Department
“to issue such regulations as may be necessary or ap-
propriate to carry out” Section 802. 42 U.S.C. 802(f). In
May 2021, the Department published an interim final
rule implementing Section 802, including the offset pro-
vision. Coronavirus State and Local Fiscal Recovery
4

Funds, 86 Fed. Reg. 26,786 (May 17, 2021); see id. at
26,807-26,811, 26,823. In January 2022, the Department
issued a final rule, which is substantially the same as the
interim final rule in its implementation of the offset pro-
vision. Coronavirus State and Local Fiscal Recovery
Funds, 87 Fed. Reg. 4338 (Jan. 27, 2022); see id. at
4423-4429, 4452-4453.
The regulations set forth the circumstances in which
the Treasury Department will consider a State “to have
used funds to offset a reduction in net tax revenue.” 31
C.F.R. 35.8(b). Specifically, the regulations explain that
a State will be considered to have used funds to offset a
reduction in net tax revenue if: (1) the State imple-
ments a change in law that it either assesses has had or
predicts will have the effect of reducing net tax revenue;
(2) the reduction caused by the change is more than de
minimis, meaning it exceeds one percent of the State’s
2019 net tax revenue, adjusted for inflation; (3) the
State reports a reduction in its net tax revenue relative
to its inflation-adjusted 2019 net tax revenue; and (4)
that reduction is greater than the sum of other changes
to the State’s net tax revenue. Ibid.
Those “other changes” to net tax revenue that can
permissibly offset tax cuts include changes resulting
from “the effects of macroeconomic growth” and certain
“[r]eductions in spending.” 31 C.F.R. 35.8(b)(4) (em-
phasis omitted). Thus, for example, a State does not
trigger any recoupment action under the offset provi-
sion if it cuts taxes but maintains its prior level of net
tax revenue due to macroeconomic growth. 31 C.F.R.
35.8(b)(4)(i). The same is true if a State cuts taxes but
maintains its prior level of net tax revenue by reducing
expenditures of state funds in a “[d]epartment[],
agenc[y], or authorit[y]” where it is not spending fiscal
5

recovery funds. 31 C.F.R. 35.8(b)(4)(ii)(A); see 87 Fed.
Reg. at 4427 (“Covered spending cuts”) (emphasis omit-
ted). In short, the Act and regulations do not provide
for recoupment if a State cuts taxes but can afford to
offset the tax cut with its own funds rather than with
the fiscal recovery funds that Congress determined are
to be used for specified purposes in light of the COVID-
19 pandemic.
3. Ohio filed this suit six days after Congress en-
acted the ARPA but before the Treasury Department
had issued its interim final rule. Pet. App. 6a. Ohio’s
complaint alleged that the offset provision is unconsti-
tutional on three grounds. First, Ohio claimed that the
provision is unconstitutionally coercive because the fed-
eral government’s “generous aid package” allegedly
“left Ohio with ‘no real choice’ but to accept the funds.”
Ibid. (citation omitted). Second, Ohio asserted that the
offset provision “violates the Spending Clause because
it ‘is ambiguous regarding what precisely constitutes a
change in tax policy that “indirectly” offsets a loss in
revenue.’ ” Ibid. (citation omitted). Third, Ohio claimed
that the offset provision “violate[s] the Tenth Amend-
ment by ‘commandeer[ing] state taxing authority.’ ” Id.
at 6a-7a (citation omitted; second set of brackets in orig-
inal).
The district court denied Ohio’s motion for a prelim-
inary injunction. Pet. App. 79a-116a. Although the
court determined that Ohio had shown a likelihood of
success on the merits, id. at 106a, it found that a prelim-
inary injunction would not prevent any irreparable
harm to Ohio, id. at 114a. Ohio then certified to the
Treasury Department, under 42 U.S.C. 802(d), that it
would use its fiscal recovery funds in accordance with
Section 802 and the Department’s implementing
6

regulations and guidance. Pet. App. 120a-121a. The
Department accordingly allotted Ohio approximately
$5.4 billion in fiscal recovery funds, id. at 117a-118a, and
Ohio has now received those funds, see Direct Payment
Summary, USASpending.gov, Direct Payment Sum-
mary, https://www.usaspending.gov/award/ASST_NON_
SLFRP0130_2001.
After further briefing, the district court entered a
permanent injunction barring the Treasury Depart-
ment from enforcing the offset provision against Ohio.
Pet. App. 25a-78a. While the court acknowledged “that
legitimate questions could be raised as to whether
[Ohio’s] injury was ‘concrete and particularized,’ ” it
found that “Ohio’s injury cleared the standing hurdle, if
barely.” Id. at 39a. The court also concluded that the
case was not moot despite the Treasury Department’s
interim final rule implementing the statutory offset pro-
vision, reasoning that the provision’s alleged ambiguity
still “cast a pall over legislators’ abilities to contemplate
* * * tax changes.” Id. at 43a. Addressing the merits,
the court ruled that the offset provision’s text is “uncon-
stitutionally ambiguous,” id. 76a; see id. at 49a-63a, and
that “even assuming Congress” can vest in an agency
the authority to implement ambiguous Spending Clause
conditions, “it did not do so here.” Id. at 71a-72a. The
court reached the latter conclusion despite Congress’s
statement that “[t]he Secretary shall have the authority
to issue such regulations as may be necessary or appro-
priate to carry out this section.” 42 U.S.C. 802(f).
4. The court of appeals unanimously reversed the
district court’s judgment and vacated the injunction for
lack of jurisdiction. Pet. App. 1a-24a. The court “con-
clude[d] that, irrespective of whether Ohio established
its initial standing to sue, its challenge is now moot.” Id.
7

at 14a. The court explained that Ohio’s challenge to the
offset provision could “remain[] live” only if Ohio could
show the prospect of “an[] imminent recoupment ac-
tion.” Id. at 16a. And “in this regard,” the court deter-
mined, “Ohio [had] c[o]me up short.” Id. at 17a. The
court noted that while Ohio’s “steadfast contention” in
the district court “was that Treasury could read the Off-
set Provision in a broad way—as barring any tax cut
during ARPA’s covered period,” the Treasury Depart-
ment has “repeatedly disavowed Ohio’s * * * reading
of the statute” in its regulations. Ibid. Accordingly, the
court held that the Department had “established [that]
there is no ‘reasonable possibility’ it will adopt Ohio’s
broad view of the Offset Provision,” id. at 18a (citation
omitted), and thus “no reason to believe that Treasury
will initiate recoupment against any policy that Ohio has
shown, with evidence, it intends to pursue,” id. at 19a.
The court of appeals then rejected Ohio’s alternative
theories for jurisdiction. First, the court explained that
any injury stemming from ambiguity in “the initial of-
fer” of funds no longer exists following Ohio’s acceptance
of the funds. Pet. App. 19a; see id. at 21a. Second, the
court made clear that the offset provision did not “ ‘ar-
guably proscribe[]’ [Ohio’s] desired tax policies” be-
cause “Treasury has repeatedly and credibly disavowed”
any intention to “take enforcement actions based on tax
cuts per se.” Id. at 20a (citing Missouri v. Yellen, 39
F.4th 1063, 1069 (8th Cir. 2022), cert. denied, 143 S. Ct.
734 (2023)). Third, the court determined that the offset
provision did not “interfere[] with [Ohio’s] sovereign au-
thority” because “Ohio never established any particular
conduct it wishes to pursue but against which Treasury
may credibly take action.” Ibid. Finally, the court con-
cluded that Ohio had failed to establish jurisdiction
8

based on its alleged costs of complying with the offset
provision, both because the statutory reporting require-
ment (42 U.S.C. 802(d)(2)) is independent of the offset pro-
vision, Pet. App. 21a-23a, and because Ohio had never
offered evidence supporting its “vague claim” that “it
has been ‘forced to reallocate resources to ensuring
compliance” with the provision, id. at 23a.
ARGUMENT
Ohio renews its contention (Pet. 16) that Article III
jurisdiction exists based on its asserted “imminent-re-
coupment, sovereign-authority, and compliance-cost in-
juries.” But the court of appeals correctly rejected each
of those theories. To the extent the decision below con-
flicts with a decision from the Eleventh Circuit, that
shallow conflict on a threshold jurisdictional issue does
not warrant this Court’s review at this time. Indeed,
the government has petitioned for rehearing en banc of
the Eleventh Circuit’s panel decision, and that petition
remains pending as of the filing of this brief in opposi-
tion. This case would also be an exceedingly poor vehi-
cle for addressing the merits of Ohio’s constitutional
challenge to the offset provision (Pet. 31-35) because
Article III jurisdiction is lacking, and the court of ap-
peals did not reach the merits in this case. This Court
recently denied a similar petition that arose in a similar
posture, see Missouri v. Yellen, 143 S. Ct. 734 (2023)
(No. 22-352), and should do the same here.
1. The court of appeals correctly held that Ohio
failed to establish ongoing Article III jurisdiction over
this suit.
a. “Under Article III, federal courts do not adjudi-
cate hypothetical or abstract disputes” and “do not is-
sue advisory opinions.” TransUnion LLC v. Ramirez,
141 S. Ct. 2190, 2203 (2021). As the court of appeals
9

explained, Ohio’s asserted injury at the outset of its
suit—“that it was ‘ponder[ing]’ whether to accept its
ARPA funds under a cloud of uncertainty”—no longer
exists, because “Ohio accepted the funds nonetheless.”
Pet. App. 15a (citation omitted). Thus, to keep its suit
alive, Ohio would have had to establish “some ongoing
or imminent future injury.” Ibid.
It failed to do so. When a plaintiff seeks to challenge
the “threatened enforcement of a law,” it must establish
“ ‘an intention to engage in a course of conduct arguably
affected with a constitutional interest, but proscribed
by a statute,’ ” and “ ‘a credible threat’ ” that the statute
will be enforced against the plaintiff. Susan B. Anthony
List v. Driehaus, 573 U.S. 149, 158-159 (2014) (citation
omitted). But here, Ohio has presented “no evidence”
of a credible threat that the Treasury Department “will
initiate recoupment against any policy that Ohio * * *
intends to pursue.” Pet. App. 19a. Ohio’s contrary con-
tention rests on an unduly broad interpretation of the
offset provision, under which “any tax cut during
ARPA’s covered period” would be barred. Id. at 17a.
The Treasury Department, however, has “repeatedly
disavowed” that “reading of the statute,” including in its
interim final rule and final rule. Ibid. And the text of
the offset provision itself forecloses such a broad inter-
pretation, as it simply restricts States from “us[ing]”
the pandemic-related federal funds in a particular man-
ner, 42 U.S.C. 802(c)(2)—not from cutting taxes.
Because there is “no ‘reasonable possibility’ [that the
Treasury Department] will adopt Ohio’s broad view of
the Offset Provision,” Ohio would have to establish an
imminent risk of recoupment under the Department’s
actual interpretation and implementation of the provi-
sion. Pet. App. 18a (citation omitted). Namely, it would
10

have to show that it had enacted (or imminently would
enact) a tax cut that “would (1) result in a reduction in
its net tax revenue, and (2) that Ohio would then offset
such a reduction with ARPA funds, or (3) fail to identify
a permissible source of offsetting funds from a state
spending cut, state tax increases in some other area, or
macroeconomic growth.” Id. at 19a; see 86 Fed. Reg.
26,807; 87 Fed. Reg. 4426. But Ohio offered “no evi-
dence” that it would “pursue that course of conduct.”
Pet. App. 19a.
b. Ohio’s two other arguments for jurisdiction fare
no better. First, Ohio asserts (Pet. 16) an injury to its
sovereign authority. But “[r]equiring States to honor
the obligations voluntarily assumed as a condition of
federal funding * * * simply does not intrude on their
sovereignty.” Bell v. New Jersey, 461 U.S. 773, 790
(1983). And even if a State could somehow suffer a sov-
ereign injury based on a federal-funding condition it
voluntarily accepts, Ohio is suffering no such injury
here, given that Ohio has made no showing that the off-
set provision (as correctly understood) is restricting the
State from pursuing “any particular conduct it wishes
to pursue.” Pet. App. 20a.
Second, Ohio relies (Pet. 21) on a “compliance-cost
injur[y].” To the extent that asserted injury stems from
the separate (and entirely reasonable) statutory re-
quirement that States receiving fiscal recovery funds
provide “periodic reports” to the Treasury Department
on their uses of those funds, 42 U.S.C. 802(d)(2), the in-
jury is unrelated to the provision at issue in this suit.
Thus, “even if enforcement of the Offset Provision were
enjoined, Ohio still would have to” meet its reporting
obligations under Section 802(d). Pet. App. 22a. Ohio’s
asserted injury, therefore, is not fairly traceable to the
11

offset provision. See California v. Texas, 141 S. Ct.
2104, 2119-2120 (2021).
To the extent Ohio asserts injury from being “forced
to reallocate resources” toward complying with the off-
set provision, Ohio neither alleged nor substantiated
that injury. Pet. App. 23a (citation omitted). As the
court of appeals held, Ohio “put forth no ‘specific facts’
by ‘affidavit or other evidence’ about what, if any, par-
ticular resources it has reallocated to ensure compli-
ance with the Offset Provision.” Id. at 23a-24a (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561
(1992)). And in any event, Ohio could not claim a legally
cognizable injury based on its reallocation of resources
toward the routine administrative task of ensuring com-
pliance with conditions on the use of federal funds it has
voluntarily accepted—in this case totaling more than $5
billion.
2. Ohio asserts (Pet. 16-25) a circuit conflict over the
justiciability of challenges to the offset provision, but
any such conflict does not warrant this Court’s review.
a. Ohio errs (Pet. 16-18) in suggesting a conflict be-
tween the decision below and decisions from the Eighth
and Ninth Circuits.
i. In Missouri v. Yellen, 39 F.4th 1063 (2022), cert.
denied, 143 S. Ct. 734 (2023), the Eighth Circuit found
no Article III jurisdiction over a case similar to the one
here. Id. at 1070. Just like the Sixth Circuit in this case,
the Eighth Circuit rejected a State’s effort to “enjoin a
hypothetical interpretation of the Offset Restriction
that the Secretary has explicitly disclaimed, without al-
leging any concrete, imminent injury from the Secre-
tary’s actual interpretation.” Ibid. Indeed, the Sixth
Circuit here expressly endorsed the Eighth Circuit’s
decision in Missouri. See Pet. App. 20a (citing 39 F.4th
12

at 1069). Accordingly, both the outcome and reasoning
in Missouri are consistent with the decision below.
Ohio observes (Pet. 24) that whereas the Eighth Cir-
cuit viewed the jurisdictional issue “through a standing
lens,” the Sixth Circuit considered it “in terms of moot-
ness.” But under either doctrine, the result here is the
same: no Article III jurisdiction. See, e.g., TransUn-
ion, 141 S. Ct. at 2204; United States v. Sanchez-Gomez,
138 S. Ct. 1532, 1537 (2018). That would be true even if
the government bore the burden of proving mootness,
see Pet. 24-25, because both the statutory text and the
Treasury Department’s regulations unequivocally fore-
close the “broad” reading of the statute upon which
Ohio’s claimed injury rests, Pet. App. 17a.
ii. Nor does the decision below conflict with the
Ninth Circuit’s decision in Arizona v. Yellen, 34 F.4th
841 (2022). That case arose at the pleading stage, and
the Ninth Circuit emphasized that it was required to
“take Arizona’s allegations to be true.” Id. at 853. In
that posture, the court accepted Arizona’s allegations
about “what the Offset Provision means and how it may
be enforced,” ibid, without considering the Treasury
Department’s regulations disavowing a broad interpre-
tation of the offset provision, see id. at 853 n.2; Pet. 17
(admitting that the Ninth Circuit “never addressed” the
Treasury Department’s regulations). And the Ninth
Circuit held that Arizona’s allegations, viewed in a vac-
uum, sufficed to survive a motion to dismiss. Arizona,
34 F.4th at 853.
In contrast to Arizona, this case arose on an appeal
from a permanent injunction, so Ohio could not rest on
“ ‘mere allegations’ ” but instead had to “ ‘set forth’ by
affidavit or other evidence ‘specific facts’ ” to support
“federal jurisdiction.” Lujan, 504 U.S. at 561 (citation
13

omitted). The Sixth Circuit accordingly asked whether
Ohio had presented “concrete evidence” that the Treas-
ury Department “might imminently pursue a recoup-
ment action in response to [Ohio’s] behavior past, pre-
sent, or future.” Pet. App. 17a. And given the Depart-
ment’s regulations “repeatedly disavow[ing] Ohio’s” un-
duly broad interpretation, the court concluded that no
such evidence existed. Ibid. Unlike in Arizona, then,
the procedural posture here meant that the Sixth Cir-
cuit had to consider the Department’s regulations and
could not simply accept Ohio’s allegations about “what
the Offset Provision means and how it may be en-
forced.” 34 F.4th at 853. Accordingly, as Ohio itself ap-
pears to ultimately concede, the decision below does not
conflict with the Ninth Circuit’s decision in Arizona.
See Pet. 23 (noting that courts in the Ninth Circuit
would “perhaps” have jurisdiction to hear a case like
this one); see also Missouri, supra, No. 22-352 (Jan. 17,
2023) (denying certiorari where Missouri had asserted
a similar conflict with Arizona).
b. Ohio also asserts (Pet. 18-21) an intra-circuit con-
flict between the decision below and the Sixth Circuit’s
decision in Kentucky v. Yellen, 54 F.4th 325 (2022), even
though Kentucky was issued on the same day and au-
thored by the same judge as the decision below. But as
an initial matter, any intra-circuit conflict can be ad-
dressed by the Sixth Circuit itself and would not war-
rant this Court’s review. See Wisniewski v. United
States, 353 U.S. 901, 902 (1957) (per curiam). 2
In any event, the decision below does not conflict
with Kentucky. In Kentucky, the Sixth Circuit held that

2
The Sixth Circuit recently denied the government’s petition for
rehearing en banc in Kentucky, over a four-judge dissent. Kentucky
v. Yellen, No. 21-6108, 2023 WL 3221058 (May 3, 2023).
14

Tennessee’s challenge to the offset provision was justi-
ciable because Tennessee had submitted “uncontroverted
evidence” of compliance costs, including a declaration
by a state official explaining the expenditures of “time
and money” that the State would incur to ensure that it
would comply with the offset provision. 54 F.4th at 342.
Here, the court of appeals did not question the availa-
bility of a similar compliance-costs injury as a legal mat-
ter; it simply held that, unlike Tennessee, “Ohio put
forth no ‘specific facts’ by ‘affidavit or other evidence’
about what, if any, particular resources it has reallo-
cated to ensure compliance with the Offset Provision.”
Pet. App. 23a-24a (citation omitted). Thus, even accept-
ing the Sixth Circuit’s determination that Tennessee es-
tablished jurisdiction to challenge the offset provision,
that determination is consistent with the decision below.
c. Ohio additionally asserts a conflict between the
decision below and the Eleventh Circuit’s decision in
West Virginia v. U.S. Department of the Treasury, 59
F.4th 1124 (2023). There, the Eleventh Circuit held that
States had standing to challenge the offset provision be-
cause the provision’s alleged “ambiguity” injures “the
States’ sovereign interests,” and because the States
face “the threat of a recoupment proceeding.” Id. at
1136-1137. The court also held that the Treasury De-
partment’s “decision to disclaim a broad reading of the
offset provision” did not “moot[] the States’ ” claims. Id.
at 1139. In so doing, the Eleventh Circuit “disagree[d]
with” some of the Sixth Circuit’s “reasoning” in the de-
cision below. Ibid.
The government respectfully submits that the panel
decision in West Virginia is incorrect and has asked the
Eleventh Circuit to rehear the case en banc. See West
Virginia, supra, No. 22-10168 (filed Mar. 6, 2023). As
15

explained above, to establish Article III jurisdiction
over a challenge to the offset provision, a State would
have to show “an intention to” violate the provision and
a “credible threat” of a recoupment action thereunder,
based on the Treasury Department’s actual interpreta-
tion of the provision in its regulations. Susan B. An-
thony List, 573 U.S. at 159 (citation omitted). The Elev-
enth Circuit thus erred in suggesting that Article III
jurisdiction existed unless the Treasury Department
“disclaimed an intention to enforce the allegedly uncon-
stitutional provision at all.” West Virginia, 59 F.4th at
1140 (emphasis added).
In any event, the Eleventh Circuit’s disagreement
with the Sixth Circuit on the threshold jurisdictional is-
sue here does not warrant this Court’s review. Con-
trary to Ohio’s submission (Pet. 25), that disagreement
does not implicate broader issues of “the States’ stand-
ing to sue the federal government.” Rather, it affects
only facial challenges to statutory conditions on the
granting of federal funds directly to a State under a fed-
eral program where (as here) no credible threat of en-
forcement of the conditions against the State currently
exists. The fact that this issue has never arisen in any
prior litigation over statutory funding conditions—
despite the ubiquity of such conditions in federal fund-
ing programs—confirms its limited significance.
3. Finally, Ohio errs in suggesting (Pet. 31-35) that
the Court should grant the petition in order to address
the merits of its challenge to the offset provision. For
the reasons already discussed, there is no Article III
case or controversy, so this Court would lack jurisdic-
tion to reach the merits. See Steel Co. v. Citizens for a
Better Env’t, 523 U.S. 83, 94 (1998). Even if the Court
believed it had jurisdiction, the Court ordinarily does
16

not decide merits questions “in the first instance”
where, as here, the court of appeals resolved the case on
threshold grounds. Zivotofsky v. Clinton, 566 U.S. 189,
201 (2012) (citation omitted); see, e.g., City of Austin v.
Reagan Nat’l Adver. of Austin, LLC, 142 S. Ct. 1464,
1476 (2022). The Court should therefore await a case in
which the court of appeals resolved the merits of a chal-
lenge to the offset provision. Indeed, the court of ap-
peals made clear that its jurisdictional holding did not
“permanently deprive Ohio of the opportunity to chal-
lenge” that provision, and that Ohio could “reassert its
merits arguments” if “a future, justiciable dispute” ever
arose. Pet. App. 24a. Accordingly, the Court should
deny Ohio’s petition, just as it did with Missouri’s peti-
tion arising from a jurisdictional holding. See Missouri,
No. 22-352 (Jan. 17, 2023).
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
ELIZABETH B. PRELOGAR
Solicitor General
BRIAN M. BOYNTON
Principal Deputy Assistant
Attorney General
ALISA B. KLEIN
DANIEL WINIK
Attorneys
MAY 2023

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