Complaint for Declaratory and Injunctive Relief — Ducey v. Yellen, No. 2:22-cv-00112 (D. Ariz., Doc. 1)
Summary
Case 2:22-cv-00112-SPL, Document 1, is a Complaint for Declaratory and Injunctive Relief filed 01/21/22, in the District of Arizona by Douglas A. Ducey, Governor of the State of Arizona, against Janet Yellen, Secretary of the Treasury, Richard K. Delmar, Acting Inspector General, and the Department of the Treasury. It alleges that Treasury seeks to deprive Arizona of millions of dollars in aid that Congress appropriated under the American Rescue Plan Act of 2021, including the Coronavirus State and Local Fiscal Recovery Fund (SLFRF). It alleges that a Final Rule, not effective until April 1, 2022, purports to prohibit SLFRF uses that undermine efforts to stop the spread of COVID-19. The prayer asks that the Final Rule be declared invalid; the signature block shows /s/ for Anni L. Foster and Brett W. Johnson.
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Cite this document
“Complaint for Declaratory and Injunctive Relief — Ducey v. Yellen, No. 2:22-cv-00112 (D. Ariz., Doc. 1).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/crossclaim-ducey-v-yellen-no-2-22-cv-00112-d-ariz-doc-1-january-21-202-449f258ce8/
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 1 of 24
1 Anni L. Foster (#023643)
General Counsel
2 Office of Arizona Governor Douglas A. Ducey
1700 West Washington Street
3 Phoenix, Arizona 85007
Telephone: 602-542-4331
4 E-Mail: afoster@az.gov
5 Brett W. Johnson (#021527)
Colin P. Ahler (#023879)
6 Derek C. Flint (#034392)
Ian R. Joyce (#035806)
7 SNELL & WILMER L.L.P.
One Arizona Center
8 400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
9 Telephone: 602.382.6000
Facsimile: 602.382.6070
10 E-Mail: bwjohnson@swlaw.com
cahler@swlaw.com
11 dflint@swlaw.com
ijoyce@swlaw.com
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12
Attorneys for Plaintiff Douglas A. Ducey,
Snell & Wilmer
13 Governor of the State of Arizona
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14
One Arizona Center, 400 E. Van Buren, Suite 1900
IN THE UNITED STATES DISTRICT COURT
15
Phoenix, Arizona 85004-2202
FOR THE DISTRICT OF ARIZONA
16
602.382.6000
17
Douglas A. Ducey, Governor of the State of
18 Arizona, in his official capacity, No.
19 Plaintiff, Complaint for Declaratory and
Injunctive Relief
20 v.
21 Janet Yellen, Secretary of the Treasury, in
her official capacity; Richard K. Delmar,
22 Acting Inspector General of the Department
of Treasury, in his official capacity; and
23 U.S. Department of the Treasury,
24 Defendants.
25
26
27
28
Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 2 of 24
1 INTRODUCTION
2 “All legislative Powers herein granted shall be vested in a Congress of the United
3 States…” U.S. Const. art. I, § 1.
4 1. The COVID-19 pandemic has created havoc in the lives of every citizen of
5 our nation, and its biggest impact has been on our children. The loss of learning,
6 socialization and opportunity has set our children back years, even with the great efforts
7 made by parents and educators.
8 2. This is why the State of Arizona, through the Governor’s Office, implemented
9 programs in accordance with federal law and regulations, using funds appropriated to it by
10 Congress, to bridge the gaps, get our children back in school and get them back on track
11 academically.
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12 3. Yet, following implementation of these programs, Arizona has been put on
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13 notice that funding, along with the children and parents it assists, will be held hostage if
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14 Arizona fails to bend to the arbitrary and capricious authority of a federal regulatory agency.
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15 4. Douglas A. Ducey, Governor of the State of Arizona, cannot allow this action
Phoenix, Arizona 85004-2202 16 to stand without protest. The work of mitigating COVID-19 “belongs to state and local
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17 governments across the country and the peoples elected representatives in Congress.” Nat’l
18 Fed’n of Indep. Bus. v. Dep’t of Labor, Occupational Safety & Health Admin., 2022 WL
19 120952, at *3 (U.S. Jan. 13, 2022) (Gorsuch, J., concurring).
20 5. This case arises out of the U.S. Department of the Treasury (“Treasury”)
21 seeking to usurp Congressional power in the area of COVID-19 financial relief. Through
22 its attempted legislative action, Treasury seeks to deprive the State of Arizona of millions
23 of dollars in aid that Congress appropriated for the purpose of mitigating the negative
24 economic impacts of the COVID-19 pandemic—monies that are critically needed to recover
25 from the pandemic’s effects on education, including the remote learning that
26 disproportionately impacted low-income students. If these effects are not addressed, they
27 will have long-term economic, educational and social, consequences.
28 6. The genesis of the dispute is Congress’s passage of the American Rescue Plan
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1 Act of 2021 (“ARPA”). Among other things, ARPA created the Coronavirus State and
2 Local Fiscal Recovery Fund (the “SLFRF”). In the text of ARPA, Congress specifically
3 described the permissible uses of SLFRF monies by States and also specifically described
4 restrictions on such uses.
5 7. Initially, Treasury—which was tasked with distributing SLFRF monies and
6 creating implementing regulations—correctly recognized that ARPA gave the States
7 “broad latitude to choose whether and how to use the [SLFRF funds] to respond to and
8 address the negative economic impact” of COVID-19. Coronavirus State and Local Fiscal
9 Recovery Funds, 86 Fed. Reg. 26786, 26794 (May 17, 2021) (emphasis added). Treasury
10 further recognized that one way for States to address the negative economic impact of
11 COVID-19 would be through programs focused on the educational impacts of remote or
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12 hybrid learning, which disproportionately affected low-income and minority students.
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13 8. In accordance with Treasury’s statements, as well as the text of ARPA,
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14 Governor Ducey used some of the SLFRF monies to create two grant programs that
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15 addressed the long-term, negative economic impacts on disadvantaged communities from
Phoenix, Arizona 85004-2202 16 school closures and overbearing mask mandates. The programs empower parents and
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17 students to exercise their freedom to make informed decisions regarding their health and
18 educational needs.
19 9. More recently, however, Treasury arbitrarily changed its guidance, and
20 through a clear abuse of discretion, is seeking to unilaterally amend ARPA by adding new
21 health conditions on how SLFRF monies may be used. In particular, and even though
22 Treasury has no background expertise in public health, Treasury recently issued a Final
23 Rule that purports to prohibit SLFRF monies from being used in a manner that, in the
24 subjective and ill-informed opinion of Treasury, would undermine efforts to stop the spread
25 of COVID-19. Based on its policy objections to the two grant programs referenced above,
26 Treasury has also indicated to Governor Ducey that, even though this Final Rule does not
27 become effective until April 1, 2022, the Rule somehow authorizes Treasury to: (1) recoup
28 SLFRF monies distributed to the State; and (2) withhold future SLFRF distributions.
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1 10. Treasury’s actions far exceed the statutory authority granted to it under
2 ARPA. Nothing in that underlying statute authorizes Treasury to condition the use of
3 SLFRF monies on following measures that, in the view of Treasury, stop the spread of
4 COVID-19. If Congress had truly intended to give Treasury the power to dictate public
5 health edicts to the States, and recoup or withhold SLFRF monies based on an alleged lack
6 of compliance with such edicts, it would have spoken clearly on the matter. It did not.
7 Moreover, even if Treasury were correct that ARPA conferred it the broad authority it now
8 claims to attach new conditions on SLFRF monies, then the statute would violate the
9 Spending Clause of the U.S. Constitution and the non-delegation doctrine. This Court
10 should declare the Final Rule invalid, declare that Treasury has acted arbitrarily and
11 capriciously and has abused its discretion, and enjoin Treasury’s legislative overreach.
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12 PARTIES, JURISDICTION AND VENUE
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13 11. Plaintiff Douglas A. Ducey is the Governor of the State of Arizona. Under
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14 Arizona law, Governor Ducey is the official authorized to accept and expend funds received
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15 from the federal government or any agency thereof. See Ariz. Rev. Stat. § 41-101.01(A).
Phoenix, Arizona 85004-2202 16 Pursuant to this authority, Governor Ducey has accepted and expended SLFRF monies.
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17 Additionally, Governor Ducey serves as the sole State official responsible for
18 communications between the State of Arizona and the federal government. See Ariz. Rev.
19 Stat. § 41-101(A)(4).
20 12. Defendant Janet L. Yellen is the Secretary of the Treasury of the United States
21 and is named in her official capacity.
22 13. Defendant Richard K. Delmar is the Acting Inspector General of the
23 Department of the Treasury and is named in his official capacity. On information and belief,
24 the Inspector General is responsible for monitoring and oversight of COVID-19 relief funds
25 that have been disbursed to the States, and is generally responsible for informing and
26 advising the Secretary of the Treasury about programs administered by Treasury and the
27 need for corrective action.
28 14. Defendant the U.S. Department of the Treasury is an agency of the United
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1 States. Treasury is not a public health agency and does not have expertise in this area.
2 Rather, on its website, Treasury describes its role as follows:
3 The Treasury Department is the executive agency responsible
for promoting economic prosperity and ensuring the financial
4 security of the United States. The Department is responsible for
a wide range of activities such as advising the President on
5 economic and financial issues, encouraging sustainable
economic growth, and fostering improved governance in
6 financial institutions. The Department of the Treasury operates
and maintains systems that are critical to the nation's financial
7 infrastructure, such as the production of coin and currency, the
disbursement of payments to the American public, revenue
8 collection, and the borrowing of funds necessary to run the
federal government. The Department works with other federal
9 agencies, foreign governments, and international financial
institutions to encourage global economic growth, raise
10 standards of living, and to the extent possible, predict and
prevent economic and financial crises. The Treasury
11 Department also performs a critical and far-reaching role in
enhancing national security by implementing economic
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12 sanctions against foreign threats to the U.S., identifying and
targeting the financial support networks of national security
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13 threats, and improving the safeguards of our financial systems.1
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14 15. This Court has jurisdiction under 28 U.S.C. §§ 1331, and 2201-02.
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15 16. Venue in the District of Arizona is proper under 28 U.S.C. § 1391(e) because:
Phoenix, Arizona 85004-2202 16 (1) Governor Ducey resides in this district, is the State official responsible for
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17 communications between the State of Arizona and the federal government, and this case
18 does not involve real property; and (2) “a substantial part of the events and omissions giving
19 rise to the claim occurred” in this district—namely, the receipt and disbursement of SLFRF
20 monies.
21 GENERAL ALLEGATIONS
22 I. The Provisions of ARPA
23 17. On March 11, 2021, President Joseph Biden signed ARPA into law.
24 18. Section 9901 of ARPA amends Title VI of the Social Security Act (42 U.S.C.
25 § 801 et seq.) to establish the SLFRF.
26 19. The SLFRF appropriates $219,800,000,000 to States, territories, and Tribal
27
1
Role of the Treasury, U.S. Department of the Treasury (last visited Jan. 20, 2022),
28 https://home.treasury.gov/about/general-information/role-of-the-treasury
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1 governments “to mitigate the fiscal effects stemming from the public health emergency with
2 respect to the Coronavirus Disease.” 42 U.S.C. § 802(a)(1) (emphasis added).
3 20. In Section 9901 of ARPA, Congress expanded on the permissible uses of
4 SLFRF monies. 42 U.S.C. § 802(c)(1). In particular, Congress mandated in 42 U.S.C.
5 § 802(c)(1) that the funds be used for one of four purposes:
6 (A) to respond to the public health emergency with respect to
the Coronavirus Disease 2019 (COVID–19) or its negative
7 economic impacts, including assistance to households, small
businesses, and nonprofits, or aid to impacted industries such as
8 tourism, travel, and hospitality;
9 (B) to respond to workers performing essential work during the
COVID–19 public health emergency by providing premium
10 pay to eligible workers of the State, territory, or Tribal
government that are performing such essential work, or by
11 providing grants to eligible employers that have eligible
workers who perform essential work;
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12
(C) for the provision of government services to the extent of the
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13 reduction in revenue of such State, territory, or Tribal
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14 relative to revenues collected in the most recent full fiscal year
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of the State, territory, or Tribal government prior to the
15 emergency; or
Phoenix, Arizona 85004-2202 16 (D) to make necessary investments in water, sewer, or
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broadband infrastructure.
17
18 21. In 42 U.S.C. § 802(c)(2), Congress described two restrictions on the use of
19 SLFRF monies:
20 (A) IN GENERAL.—A State or territory shall not use the
funds provided under this section or transferred pursuant to
21 section 803(c)(4) of this title to either directly or indirectly
offset a reduction in the net tax revenue of such State or territory
22 resulting from a change in law, regulation, or administrative
interpretation during the covered period that reduces any tax (by
23 providing for a reduction in a rate, a rebate, a deduction, a
credit, or otherwise) or delays the imposition of any tax or tax
24 increase.
25 (B) PENSION FUNDS. —No State or territory may use funds
made available under this section for deposit into any pension
26 fund.
27 22. ARPA also provided that Treasury may provide SLFRF funds to States in
28 separate installments with the only requirement for acceptance of each installment that the
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1 State sign a certification stating that the funds will only be used for the purposes outlined
2 in the statute. 42 U.S.C. § 802(b)(6)(A)(ii) and (d).
3 23. ARPA does not contain any provisions that prohibits State, local, or Tribal
4 governments from using SLFRF monies on programs that according to Treasury
5 “undermine” efforts to stop the spread of COVID-19 or that require compliance with CDC
6 recommendations or guidance—notably such provisions would put Treasury responsible
7 for determining public health protocols, for which it is not qualified or, more importantly,
8 statutorily-authorized.
9 24. In discussing the recoupment remedy, Congress explained that “[a]ny State,
10 territory, or Tribal government that has failed to comply with” 42 U.S.C. § 802(c) in its use
11 of SLFRF monies “shall be required to repay to the Secretary [of the Treasury] an amount
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12 equal to the amount of funds used in violation of such subsection.” 42 U.S.C. § 802(e).
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13 25. Congress also provided some authority to Treasury to withhold monies based
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14 on a lack of compliance with 42 U.S.C. § 802(c): “If a State or territory is required under
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15 [42 U.S.C. § 802(e)] to repay funds for failing to comply with [42 U.S.C. § 802(c)], the
Phoenix, Arizona 85004-2202 16 Secretary may reduce the amount otherwise payable to the State or territory. 42 U.S.C.
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17 § 802(b)(6)(ii)(III).
18 26. Congress also gave the Secretary of the Treasury “the authority to issue such
19 regulations as may be necessary or appropriate to carry out this section.” 42 U.S.C. § 802(f).
20 II. Treasury’s Interim Final Rule
21 27. On May 17, 2021, Treasury published in the Federal Register an “Interim
22 Final Rule” implementing the SLFRF. Coronavirus State and Local Fiscal Recovery Funds,
23 86 Fed. Reg. 26786 (May 17, 2021). A copy of the Interim Final Rule is attached as Exhibit
24 1.
25 28. The Interim Final Rule described how a state could use SLFRF in order to fall
26 within one of the four categories of permissible uses described in 42 U.S.C. § 802(c)(1).
27 29. For instance, with respect to the first category of permissible use (42 U.S.C.
28 § 802(c)(1)(A)), the Interim Final Rule described how a program could respond to the
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1 COVID-19 public health emergency or the negative economic impacts of the pandemic. In
2 fact, the Interim Final Rule addressed each of these two topics separately, under different
3 headings—one section was titled “Responding to COVID–19,” while another was titled
4 “Responding to Negative Economic Impacts.” The Interim Final Rule also explained:
5 “While the COVID–19 public health emergency affected many aspects of American life,
6 eligible uses under this category must be in response to the disease itself or the harmful
7 consequences of the economic disruptions resulting from or exacerbated by the COVID–19
8 public health emergency.” 86 Fed. Reg. at 26788 (emphasis added).
9 30. In the section addressing “Responding to Negative Economic Impacts,” the
10 Interim Final Rule provided that “[w]here there has been a negative economic impact
11 resulting from the public health emergency, States, local, and Tribal government have broad
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12 latitude to choose whether and how to use the Fiscal Recovery Funds to Respond to and
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13 address the negative economic impact.” 86 Fed. Reg. at 26794 (emphasis added).
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14 31. The Interim Final Rule then detailed, on several occasions, how a state could
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15 respond to negative economic impacts of COVID-19 by addressing the educational impacts
Phoenix, Arizona 85004-2202 16 of the pandemic. For instance, the Interim Final Rule stated:
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17 a. “The negative economic impacts of COVID-19 also include significant
18 impacts to children in disproportionately affected families and include
19 impacts to education, health, and welfare, all of which contribute to long-term
20 economic outcomes.” 86 Fed. Reg. at 26793 (emphasis added).
21 b. “Many low-income and minority students, who were disproportionately
22 served by remote or hybrid education during the pandemic, lacked the
23 resources to participate fully in remote schooling or live in households
24 without adults available throughout the day to assist with online coursework.”
25 Id. (emphasis added).
26 c. “Given these trends, the pandemic may widen educational disparities and
27 worsen outcomes for low-income students, an effect that would substantially
28 impact their long-term economic outcomes. Increased economic strain or
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1 material hardship due to the pandemic could also have a long-term impact on
2 health, educational, and economic outcomes of young children.” Id.
3 (emphasis added).
4 32. Accordingly, the Interim Final Rule stated that SLFRF monies may be used
5 on: “Evidence-based educational services and practices to address the academic needs of
6 students, including tutoring, summer, afterschool, and other extended learning and
7 enrichment programs.” 86 Fed. Reg. at 26796. Other permissible uses of SLFRF monies
8 include: “Evidence-based practices to address the social, emotional, and mental health
9 needs of students.” Id.
10 33. Although Treasury included examples of allowable uses of SLFRF monies, it
11 also noted that such examples were not exhaustive and provided the following guidelines
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12 for States to use to analyze whether programs complied with the statutory provisions: (1)
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13 “a recipient should first consider whether an economic harm exists;” and (2) whether use of
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14 the funds would “respond to” or address the harm. 86 Fed. Reg. at 26794.
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15 34. Treasury also released a “Frequently Asked Questions” guidance document
Phoenix, Arizona 85004-2202 16 about the Interim Final Rule, which similarly explained that SLFRF monies may be used to
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17 “Address[] educational disparities exacerbated by COVID-19, including: early learning
18 services, increasing resources for high-poverty school districts, educational services like
19 tutoring or afterschool programs, and supports for students’ social, emotional, and mental
20 health needs.” [Exhibit 2, Coronavirus State and Local Fiscal Recover Funds Interim Final
21 Rule: Frequently Asked Questions, U.S. Department of the Treasury, at 7-8 (Jan. 2022),
22 https://home.treasury.gov/system/files/136/SLFRPFAQ.pdf.]
23 35. The Interim Final Rule does not contain any provision that prohibits States
24 from using SLFRF monies on programs that supposedly “undermine” efforts to mitigate the
25 spread of COVID-19 or are inconsistent with any CDC guidance or recommendations
26 relating to the spread of COVID-19.
27 III. Arizona’s Use of SLFRF Monies
28 36. With the Interim Final Rule in place, on May 21, 2021, Matthew Gress,
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1 Director of the Governor’s Office of Strategic Planning and Budgeting (“OSPB”), signed a
2 certification form issued by Treasury authorizing Treasury to make SLFRF payments to the
3 State.
4 37. Subsequent to that certification, the State received the first “tranche” of
5 SLFRF funding.
6 38. On August 17, 2021, Governor Ducey announced the Education Plus-Up
7 Grant Program (“Plus-Up”). Plus-Up made $163 million in ARPA funds available to
8 Arizona school districts and charter schools that received less than $1,800 per pupil under
9 previous programs that were also intended to mitigate the economic impacts of COVID:
10 namely, the Enrollment Stabilization Grant Program and/or the Elementary and Secondary
11 School Emergency Relief Fund.
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12 39. Governor Ducey’s announcement of Plus-Up explained that the program “is
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13 designed to further aid in the mitigation of the economic impacts of COVID-19 and further
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14 ensure financial stability to Arizona Local Education Agencies.” State Fiscal Recovery
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15 Fund: Education Plus-Up (EPU), eCivis (last visited Jan. 20, 2022),
Phoenix, Arizona 85004-2202 16 https://gn.ecivis.com/GO/gn_redir/T/1sdmeoc0bsnvo.
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17 40. Consistent with this purpose, Plus-Up funds must be used on expenses
18 directly related to the mitigation of the impacts of the COVID-19 pandemic. Id. (under
19 “Eligibility” tab). Expenditures not directly related to mitigating the impacts of the COVID-
20 19 pandemic are prohibited. Id. (under “Eligibility” tab).
21 41. To be eligible for Plus-Up grants, districts and charters may not “requir[e] the
22 use of face coverings during instructional hours and on school property (with the exception
23 of CDC transportation guidelines);” though schools have every ability to encourage
24 practices recommended by the CDC and students were not prohibited from doing so.
25 District and charters must also “remain[] open for in-person instruction as of August 27,
26 2021 and throughout the remainder of the school year.” Id. (under “Eligibility” tab).
27 42. Also on August 17, 2022, Governor Ducey announced the COVID-19
28 Educational Recovery Benefit Program (“ERB”) program. The ERB program supplied $10
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1 million in ARPA monies for K-12 students and families facing financial and educational
2 barriers due to school closures and mandates.
3 43. To be eligible for an ERB award, K-12 students and parents must demonstrate
4 that: (1) their household income is at or below 350% of the Federal Poverty Level; and (2)
5 their current school is requiring the use of face coverings during instructional hours and on
6 school property (with the exception of CDC transportation guidelines). Covid-19
7 Educational Recovery Benefit, FACTS (last visited Jan. 20, 2022),
8 https://online.factsmgt.com/grant-aid/inst/4NXJL/landing-page. The ERB program
9 provides funding of up to $7,000 per student. Id. Among other things, ERB funds may be
10 spent on school tuition, online tutoring, childcare, daycare fees, after-school care fees, and
11 before-school care fees of Arizona Department of Economic Security-contracted providers.
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12 Id.
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13 44. The application materials for Plus-Up and the ERB both state: “The Arizona
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14 Office of the Governor supports and encourages schools informing educators, parents and
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15 students of the CDC recommendations regarding COVID-19 Mitigation Policies.” See
Phoenix, Arizona 85004-2202 16 Covid-19 Educational Recovery Benefit, supra; State Fiscal Recovery Fund: Education
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17 Plus-Up (EPU), supra.
18 45. Plus-Up and the ERB both fall within the ARPA’s authorization to use
19 SLFRF monies to address the “negative economic impacts” of COVID-19. 42 U.S.C.
20 § 802(c)(1).
21 IV. The Governor’s Office Responds to Treasury’s Concerns about Plus-Up and
22 ERB
23 46. On October 5, 2021, Treasury wrote a letter to the Governor’s Office of
24 Strategic Planning and Budgeting (“OSPB”), asserting that Plus-Up and ERB “undermine
25 evidence-based efforts to stop the spread of COVID-19.” [Exhibit 3, Oct. 5, 2021 Letter
26 from U.S. Department of Treasury to Governor Ducey, at 1.]
27 47. More specifically, Treasury took issue with the Plus-Up program stating that
28 the program conditions SLFRF funding on “the recipient school districts not requiring the
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1 use of face coverings during instructional hours and on school property.” [Id.] Similarly,
2 Treasury complained that the ERB program provides “up to $7,000 per student to families
3 for tuition or other educational costs at a new school that does not require face coverings if
4 the student’s current school is requiring the use of face coverings during instructional hours
5 and on school property.”2 [Id.]
6 48. In the October 5 letter, Treasury, without asking for information to justify the
7 State’s program, stated that “[a] program or service that imposes conditions on participation
8 or acceptance of the service that would undermine efforts to stop the spread of COVID-19
9 or discourage compliance with evidence-based solutions for stopping the spread of COVID-
10 19 is not a permissible use of SLFRF funds.” [Id. at 2.] However, Treasury did not cite any
11 text from ARPA to support its contention that Plus-Up or ERB were not permissible uses
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12 of SLFRF funds.
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13 49. In support of its position that SLFRF funds may not be used on programs that,
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14 in Treasury’s view, “discourage compliance with evidence-based solutions for stopping the
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15 spread of COVID-19,” Treasury instead cited to pages 26786 and 26790 of the Interim Final
Phoenix, Arizona 85004-2202 16 Rule. But this language is not found on page 26786 or page 26790. See 86 Fed. Reg. 26786,
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17 26790. Indeed, nothing in page 26786 of the Interim Final Rule places constraints on the
18 use of SLFRF monies. Rather, that page provides “background information” about the
19 COVID-19 pandemic. See 86 Fed. Reg. at 26786.
20 50. Similarly, nothing on page 26790 of the Interim Final Rule places constraints
21 on the use of SLFRF monies. Rather, that page sets forth certain “Eligible Public Health
22 Uses” of SLFRF monies. See 86 Fed. Reg. at 26790.
23 51. In the October 5 letter, Treasury demanded that OSPB supply a “response
24 describing how the State will remediate the issues identified” with Plus-Up and ERB. Citing
25 31 C.F.R. § 35.10, Treasury stated that “[f]ailure to respond to or remediate may result in
26 administrative or other action.” [Ex. 3 at 2.]
27
2
Nothing in either the Plus-Up program or the ERB program prohibited students from
28 wearing masks or taking other precautions against COVID.
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1 52. The Governor’s Office responded on November 4, 2021 with a letter to
2 Treasury detailing how these programs sought to address the negative economic impacts of
3 COVID-19, as permitted by ARPA, and how the programs were consistent “with the
4 guidance released by the Treasury governing the program, including the Interim Final Rule
5 and all posted Frequently Asked Questions (FAQs).” [Exhibit 4, Nov. 4, 2022 Letter from
6 OSPB to Treasury, at 3.]
7 53. Regarding Plus-Up, OSPB stated that this program “addresses educational
8 disparities by ensuring schools have the funding necessary to effectively meet the needs of
9 every student, regardless of their family’s income or socioeconomic status.3 Moreover, by
10 limiting funding to only schools that remain open for in-person instruction, the State is
11 addressing the significant educational disparities caused by remote learning during the
L.L.P.
12 COVID-19 pandemic.” [Id.]
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13 54. Regarding ERB, OSPB stated that this program “empowers parents to
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14 exercise their freedom to make informed decisions regarding their child’s educational
One Arizona Center, 400 E. Van Buren, Suite 1900
15 needs. For parents who prioritize their child’s social, emotional, and mental health needs
Phoenix, Arizona 85004-2202 16 and believe a mask mandate would adversely impact their child, the program offers these
602.382.6000
17 parents the freedom and funding to enroll their student in a different program absent of a
18 mask mandate. To reduce the spread of COVID-19 without the need for masks, Arizona
19 already offers free COVID-19 testing for all residents.” [Id. at 3-4.]
20 55. The November 4 letter also cited specific provisions of the Interim Final Rule,
21 and Treasury FAQs on that rule, further demonstrating that Plus-Up and ERB were
22 permissible uses of SLFRF funds. [Id. at 3.]
23 56. Additionally, the November 4 letter provided other important background
24 information supporting the two programs. For instance, the November 4 letter explained
25 that students in the “poorest 20% of U.S. neighborhoods” are most damaged by the COVID-
26 19 pandemic. [Id at 1.] It also noted that, according to the CDC, COVID-19 “has a lower
27
3
This funding was necessary because of the grossly disproportionate distribution of federal
28 funding to some schools over others when all schools suffered effects from COVID-19.
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 14 of 24
1 likelihood of transmission among students.” [Id.] “Indeed, in the United Kingdom, frequent
2 rapid testing was found to be effective at reducing the transmission of the Delta COVID-19
3 variant amongst students, even if students did not wear masks.” [Id.] The November 4 letter
4 further stated that “experts have warned that masks can be harmful to children's emotional
5 development, as seeing faces and reading emotional queues are critical for school-aged
6 children.” [Id. at 2.]
7 V. Treasury Issues a Final Rule Attaching New, Unlawful Restrictions on the Use
of SLFRF Funds.
8
9 57. On January 6, 2022, Treasury issued a Final Rule that “adopt[ed] as final the
10 interim final rule published on May 17, 2021 with amendments.” [Exhibit 5, Final Rule, at
11 1.]
58. One such “amendment” added in the Final Rule, though, was a wholesale
L.L.P.
12
change to the previous provisions that is not supported by ARPA. That amendment is a
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13
LAW OFFICES purported prohibition on using SLFRF funds on a “program or service that imposes
14
One Arizona Center, 400 E. Van Buren, Suite 1900 conditions on participation or acceptance of the service that would undermine efforts to stop
15
Phoenix, Arizona 85004-2202 16 the spread of COVID-19 or discourage compliance with recommendations and guidelines
602.382.6000
17 in CDC guidance for stopping the spread of COVID-19.” [Id. at 346 (also explaining that
18 “recipients may not use funds for a program that undermines practices included in the
19 CDC’s guidelines and recommendations for stopping the spread of COVID-19”); see also
20 id. at 10, 58 (similar).]
21 59. Supposedly impermissible “programs or services” to be determined by
22 Treasury include “programs that impose a condition to discourage compliance with
23 practices in line with CDC guidance (e.g., paying off fines to businesses incurred for
24 violation of COVID-19 vaccination or safety requirements), as well as programs that require
25 households, businesses, nonprofits, or other entities not to use practices in line with CDC
26 guidance as a condition of receiving funds (e.g., requiring that businesses abstain from
27 requiring mask use or employee vaccination as a condition of receiving SLFRF funds).”
28 [Id. at 346.]
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 15 of 24
1 60. The Final Rule does not cite any statutory text from ARPA to support this
2 new prohibition. No such text exists.
3 61. The prohibition on using SLFRF funds for programs that allegedly
4 “undermine” constantly changing CDC recommendations related to COVID-19 mitigation
5 efforts is also not found in the Interim Final Rule.
6 62. Treasury is not a public health agency and does not have expertise in stopping
7 the spread of COVID-19.
8 63. The effective date of the final rule is April 1, 2022. [Id. at 1.] Until the Final
9 Rule becomes effective, the Interim Final Rule remains binding and effective. [Id. at 121.]
10 VI. Citing the Final Rule, Treasury Demands Action by the Governor Within 60
11 Days.
L.L.P.
12 64. On January 14, 2022, Treasury sent another letter to the Governor’s Office,
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13 once again raising concerns with Plus-Up and ERB. The letter re-iterated Treasury’s flawed
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14 position that SLFRF monies may not be used on programs that supposedly “undermine”
One Arizona Center, 400 E. Van Buren, Suite 1900
15 efforts to stop the spread of COVID-19 and that Plus-Up and the ERB supposedly fail that
Phoenix, Arizona 85004-2202 16 test because of how they address school mask mandates. [Exhibit 6, Jan. 14 Letter from
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17 Treasury to OSPB, at 1-2.] Based on this, Treasury claimed that the Plus-Up program and
18 the ERB program “as currently structured are ineligible uses of SLFRF funds.” [Id. at 2.]
19 65. Similar to its previous letter, Treasury did not point to any statutory text from
20 ARPA to support its position. The January 14 letter does not even cite 42 U.S.C. § 802(c)
21 or any other provision of the ARPA.
22 66. The January 14 letter instead makes the irrelevant point that “the Interim Final
23 Rule permits SLFRF funds to be used for a range of COVID-19 mitigation strategies,
24 including face coverings, vaccination programs, and improved ventilation.” [Id. at 1 n.1.]
25 But this is simply one of the non-exclusive, possible uses of SLFRF monies. There is no
26 mandate in ARPA, or the Interim Final Rule, that SLFRF monies be used on “COVID-19
27 mitigation strategies.”
28 67. At different points, the January 14 letter also cites the Final Rule. Most
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 16 of 24
1 relevant here, the January 14 letter asserts: “[t]he Final Rule, which was issued on January
2 6, 2022, further clarifies how SLFRF funds may be used, including that a recipient may not
3 use SLFRF funds for a program, service, or capital expenditure that includes a term or
4 condition that undermines efforts to stop the spread of COVID-19.” [Jan. 14 Letter at 1 n.1.]
5 68. The January 14 letter does not acknowledge that the Final Rule only becomes
6 effective on April 1, 2022. Nor did Treasury provide any basis for giving the Final Rule
7 retroactive effect to recoup previously distributed SLFRF monies. See, e.g., Afanador v.
8 Garland, 11 F.4th 985, 991 (9th Cir. 2021) (“When an agency engages in formal
9 rulemaking, the rules it promulgates are analogous to legislation and are construed to apply
10 only prospectively (unless Congress has expressly authorized it to promulgate a
11 retroactively applicable rule).”).
L.L.P.
12 69. Nevertheless, the January 14 letter used that not-yet-effective Final Rule to
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13 demand action by the Governor. In particular, Treasury stated that the Governor must “(i)
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14 redirect SLFRF funds to eligible uses or (ii) remediate the issues with the Education Plus-
One Arizona Center, 400 E. Van Buren, Suite 1900
15 Up Grant Program and the COVID-19 Educational Recovery Benefit Program by
Phoenix, Arizona 85004-2202 16 redesigning the programs to eliminate any elements that are inconsistent with the purpose
602.382.6000
17 and requirements of the SLFRF program.” [Ex. 6 at 2.]
18 70. Treasury described two consequences from a lack of compliance with its
19 demands. First, it stated that “[f]ailure to take either step within sixty (60) calendar days
20 may result in Treasury initiating an action to recoup SLFRF funds used in violation of the
21 eligible uses.” [Id.] Second, Treasury stated that it “may also withhold funds from the State
22 of Arizona’s second tranche installment of SLFRF funds until Treasury receives
23 information that confirms that the issues described above have been adequately addressed.”
24 [Id.]
25 71. In light of this history, there is no question that this controversy is ripe and
26 that Governor Ducey has Article III standing. Treasury had no statutory authority to require
27 the State to use SLFRF monies in a manner that, pursuant to Treasury’s sole discretion,
28 would not undermine efforts to stop the spread of COVID-19. Instead, Treasury, in an
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 17 of 24
1 abuse of discretion, issued the Final Rule well in excess of its statutory authority. With the
2 recent issuance of the Final Rule, however, Treasury has demanded that Governor Ducey
3 either comply with the Rule—even though it far exceeds Treasury’s statutory authority—
4 or else face recoupment and withholding of SLFRF monies within 60 days.4 The Governor’s
5 Office will not eliminate or change the Plus-Up and ERB programs to conform to
6 Treasury’s unlawful dictates. The concrete and particularized injury-in-fact to the Governor
7 is therefore actual or imminent, not conjectural or hypothetical. See, e.g., Skyline Wesleyan
8 Church v. Cal. Dep’t of Managed Health Care, 968 F.3d 738, 748 (9th Cir. 2020); Bishop
9 Paiute Tribe v. Inyo Cty., 863 F.3d 1144, 1153-54 (9th Cir. 2017).
10 FIRST CAUSE OF ACTION
11 (Violation of the Administrative Procedure Act—Final Rule)
L.L.P.
12 72. Governor Ducey incorporates the allegations in the preceding paragraphs as
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13 if fully set forth herein.
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14 73. The Administrative Procedure Act (“APA”) authorizes the Court to hold
One Arizona Center, 400 E. Van Buren, Suite 1900
15 unlawful and set aside agency action that is “in excess of statutory jurisdiction, authority,
Phoenix, Arizona 85004-2202 16 or limitations, or short of statutory right,” or is “arbitrary, capricious, an abuse of discretion,
602.382.6000
17 or otherwise not in accordance with law.” 5 U.S.C. § 706(2).
18 74. The Final Rule is a final agency action within the meaning of the APA. 5
19 U.S.C. § 551(13).
20 75. Governor Ducey has suffered legal wrong and is adversely affected or
21 aggrieved by the Final Rule. 5 U.S.C. § 702. As stated, Governor Ducey is the party
22 authorized by Arizona law to accept and expend the SLFRF monies that Treasury seeks to
23 withhold and recoup. See A.R.S. § 41-101.01(A). The Final Rule seeks to impose new
24 conditions on how Governor Ducey may exercise this authority, and prohibit programs like
25 Plus-Up and ERB that were instituted before the issuance of the Final Rule. Indeed,
26
4
The Governor notes that Treasury further abused its authority by requiring the State of
27 Arizona to comply with the Final Rule before that rule ever goes into effect, since the
response would be due to Treasury on March 15, 2022 and the rule would not go into effect
28 until April 1, 2022.
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 18 of 24
1 Treasury specifically cited the Final Rule as grounds to demand that Governor Ducey
2 change these programs within 60 days or else face recoupment and withholding of SLFRF
3 monies.
4 76. It is axiomatic that a federal agency must have statutory authority for the
5 regulations it issues. See, e.g., Mexichem Fluor, Inc. v. Env’t Protection Agency, 866 F.3d
6 451, 460 (D.C. Cir. 2017) (“The agency must have statutory authority for the regulations it
7 wants to issue.”). “Merely because an agency has rulemaking power does not mean that it
8 has delegated authority to adopt a particular regulation.” N.Y. Stock Exch. LLC v. SEC, 962
9 F.3d 541, 554 (D.C. Cir. 2020).
10 77. Here, the Final Rule far exceeds the limited statutory authority granted to
11 Treasury by ARPA. That statute did not confer Treasury with power to prohibit States from
L.L.P.
12 expending SLFRF monies in a manner that in Treasury’s subjective and extraordinary
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13 determination “would undermine efforts to stop the spread of COVID-19 or discourage
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14 compliance with recommendations and guidelines in CDC guidance for stopping the spread
One Arizona Center, 400 E. Van Buren, Suite 1900
15 of COVID-19.” [Ex. 5 at 346].
Phoenix, Arizona 85004-2202 16 78. To the contrary, Congress specifically described the permissible uses of
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17 SLFRF funds, as well as restrictions on such uses, in 42 U.S.C. § 802(c). In describing how
18 the funds may be used, Congress did not prohibit States from expending SLFRF monies in
19 a manner that Treasury subjectively believes will “undermine” COVID-19 mitigation
20 efforts or require states to follow CDC guidance in implementing programs that expend
21 SLFRF monies. Neither § 802(c), nor any other provision of ARPA, authorizes Treasury to
22 create new restrictions that are untethered to and inconsistent with the text of the ARPA.
23 79. The first category of permissible use of SLFRF monies identified by Congress
24 discussed is particularly instructive here. That category allows SLFRF monies to be used
25 “to respond to the public health emergency with respect to the Coronavirus Disease 2019
26 (COVID–19) or its negative economic impacts.” 42 U.S.C. § 802(c)(1)(A) (emphasis
27 added). Congress used the word “or”—not “and.” At no point did Congress suggest that,
28 in addressing “negative economic impacts,” States must structure programs to comply with
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 19 of 24
1 COVID-19 mitigation guidance.
2 80. Nor is the Final Rule’s extra-statutory restriction on SLFRF monies
3 “necessary or appropriate to carry out” Section 802 of ARPA. See 42 U.S.C. § 802(f).
4 81. Although the plain language of ARPA is sufficient to conclude that the Final
5 Rule exceeds Treasury’s statutory authority, this conclusion is buttressed by the “major
6 questions” doctrine. Under this doctrine, and as recently affirmed by the U.S. Supreme
7 Court, courts “expect Congress to speak clearly when authorizing an agency to exercise
8 powers of vast economic and political significance.” Ala. Assn. of Realtors v. Dep’t of
9 Health & Human Servs., 141 S. Ct. 2485, 2489 (2021) (quotation omitted); Nat’l Fed’n of
10 Indep. Bus., 2022 WL 120952, at *3 (same).
11 82. If Congress intended to give Treasury—which has absolutely no expertise in
L.L.P.
12 matters of public health—the authority to withhold or recoup tens of millions of dollars
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13 from States based on Treasury’s subjective assessment of whether a State program
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14 “undermines” COVID-19 mitigation efforts, Congress needed to “speak clearly.”
One Arizona Center, 400 E. Van Buren, Suite 1900
15 83. The need for Congress to “speak clearly” is particularly pressing where, as
Phoenix, Arizona 85004-2202 16 here, Treasury’s Final Rule would “intrude[] into . . . area[s] that [are] the particular domain
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17 of state law”—public health and education policy. Ala. Assn. of Realtors, 141 S. Ct. at 2489.
18 By contrast, public-health policy is completely outside the domain of Treasury, which lacks
19 the expertise required to assess whether a particular expenditure of SLFRF funds “would
20 undermine efforts to stop the spread of COVID-19.”
21 84. Because Congress did not “speak clearly” (or, indeed, speak at all) on this
22 issue of vast economic and political significance, the Final Rule exceeds Treasury’s
23 statutory authority. It is also arbitrary, capricious, an abuse of discretion, and contrary to
24 law. The Final Rule must therefore be held unlawful and set aside pursuant to 5 U.S.C. §
25 702(2)(A) and (2)(C).
26 …
27 …
28 …
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 20 of 24
1 SECOND CAUSE OF ACTION
2 (Violation of the Administrative Procedure Act—January 14 Treasury Demand
3 Letter)
4 85. Governor Ducey incorporates the allegations in the preceding paragraphs as
5 if fully set forth herein.
6 86. The January 14 letter is a final agency action within the meaning of the APA.
7 5 U.S.C. § 551(13).
8 87. Because Arizona law makes Governor Ducey responsible for accepting and
9 expending the SLFRF monies that Treasury seeks to withhold and recoup, A.R.S. § 41-
10 101.01(A), Governor Ducey has suffered legal wrong and is adversely affected or aggrieved
11 by the January 14 letter. 5 U.S.C. § 702.
L.L.P.
12 88. Treasury exceeded its statutory authority under 42 U.S.C. § 802, acted
Snell & Wilmer
13 arbitrarily and capriciously, and abused its discretion, and acted contrary to law in
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14 demanding that Governor Ducey eliminate or modify the Plus-Up and ERB programs on
One Arizona Center, 400 E. Van Buren, Suite 1900
15 the grounds that these programs allegedly “impose[] conditions on participation in or
Phoenix, Arizona 85004-2202 16 acceptance of the service that would undermine efforts to stop the spread of COVID-19 or
602.382.6000
17 discourage compliance with recommendations and guidelines in CDC guidance for
18 stopping the spread of COVID-19.” [Ex. 5 at 346; see also Ex. 6 at 1.].
19 89. Nothing in ARPA authorizes Treasury to impose such conditions on SLFRF
20 monies. None of the four categories of permissible use, or the two use restrictions, in 42
21 U.S.C. § 802(c) come close to prohibiting States from expending SLFRF monies in a
22 manner that Treasury determines will “undermine” COVID-19 mitigation efforts or require
23 compliance with CDC guidance or recommendations. Nor does anything in ARPA give
24 Treasury authority to impose new conditions on how SLFRF monies are used that are not
25 found anywhere in the statutory text.
26 90. Likewise, the Interim Final Rule fails to authorize Treasury’s action. That rule
27 does not say anything about mask mandates in schools or any other measures that
28 supposedly “undermine” COVID-19 mitigation efforts. Similarly, the Interim Final Rule
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 21 of 24
1 does not require States to abide secondhand, ever-changing CDC guidance in implementing
2 programs that expend SLFRF monies.
3 91. The Final Rule also cannot provide any grounds for recoupment or
4 withholding since that Rule exceeds Treasury’s authority and does not become effective
5 until April 1, 2022.
6 92. Plus-Up and ERB are entirely consistent with 42 U.S.C. § 802(c) because they
7 respond to the “negative economic impacts” of the COVID-19 pandemic by, among other
8 things, providing economic assistance to households and schools to address the pandemic’s
9 impact on education.
10 93. Because Treasury’s actions have no basis in statute or the currently effective
11 regulation, Treasury has exceeded its authority, abused its discretion, and acted arbitrarily,
L.L.P.
12 capriciously, and contrary to law, all in violation of the APA. See 5 U.S.C. § 706(2). The
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13 January 14 letter must therefore be held unlawful and set aside pursuant to 5 U.S.C.
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14 § 702(2)(A) and (2)(C).
One Arizona Center, 400 E. Van Buren, Suite 1900
15 THIRD CAUSE OF ACTION
Phoenix, Arizona 85004-2202 16 (Declaratory Judgment—Violation of the Spending Clause)
602.382.6000
17 94. Governor Ducey incorporates the allegations in the preceding paragraphs as
18 if fully set forth herein.
19 95. Article I, § 8, cl. 1 of the U.S. Constitution (the Spending Clause) empowers
20 Congress to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
21 provide for the common Defence and general Welfare of the United States.”
22 96. If, however, Congress “desires to condition the States’ receipt of federal
23 funds,” then it “must do so unambiguously . . . enabl[ing] the States to exercise their choice
24 knowingly, cognizant of the consequences of their participation.” South Dakota v. Dole,
25 483 U.S. 203, 207 (1987) (quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S.
26 1, 17 (1981)) (alteration in original).
27 97. If the Final Rule is authorized by statute (it is not), then it violates the
28 Spending Clause because the enabling statute, 42 U.S.C. § 802, is ambiguous in the strings
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 22 of 24
1 it attaches to the use of SLFRF monies.
2 98. In particular, 42 U.S.C § 802 does not give States any notice that SLFRF
3 monies could, at some future date, be withheld or recouped based on Treasury’s
4 determination that the State’s use of the monies “undermine[s] efforts to stop the spread of
5 COVID-19.” And § 802 certainly does not alert States to the possibility that their use of
6 SLFRF monies must comport with the CDC’s ever-changing COVID-19 guidance.
7 99. Accordingly, even if the Final Rule is somehow authorized by statute, it
8 violates the Spending Clause.
9 FOURTH CAUSE OF ACTION
10 (Declaratory Judgment—Violation of the Non-Delegation Doctrine)
11 100. Governor Ducey incorporates the allegations in the preceding paragraphs as
L.L.P.
12 if fully set forth herein.
Snell & Wilmer
13 101. Article I, § 1, of the U.S. Constitution vests “[a]ll legislative Powers herein
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14 granted ... in a Congress of the United States.”
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15 102. Thus, “when Congress confers decisionmaking authority upon agencies
Phoenix, Arizona 85004-2202 16 Congress must ‘lay down by legislative act an intelligible principle to which the person or
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17 body authorized to [act] is directed to conform.’” Whitman v. Am. Trucking Assoc., 531
18 U.S. 457, 472-73 (2001) (quoting J.W. Hampton, Jr. & Co v. United States, 276 U.S. 394,
19 409 (1928)) (emphasis in original omitted).
20 103. If the Final Rule is authorized by ARPA (again, it is not), then this means that
21 the Act sets forth no “intelligible principle[s]” guiding Treasury’s decisions to withhold or
22 recoup SLFRF monies.
23 104. Rather, if the Final Rule is authorized by ARPA, then this means Treasury
24 has unfettered discretion to add new conditions on SLFRF funds, including conditions based
25 on Treasury’s beliefs about what COVID-19 mitigation strategies are appropriate, despite
26 the fact that Treasury is not a public health agency and does not have expertise in this area.
27 105. Accordingly, if the Final Rule falls within the authority granted to Treasury
28 by ARPA, then the Act violates the non-delegation doctrine.
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 23 of 24
1 PRAYER FOR RELIEF
2 Wherefore, Governor Ducey requests that this Court:
3 A. Declare that the Final Rule is unlawful and must be set aside because the Final
4 Rule exceeds Treasury’s statutory authority, is an abuse of discretion, is arbitrary and
5 capricious, and is contrary to law;
6 B. Declare that Defendants have abused their discretion, exceeded their statutory
7 authority, and acted arbitrarily, capriciously, and contrary to law by demanding that
8 Governor Ducey eliminate or modify existing SLFRF programs;
9 C. Permanently enjoin Defendants from enforcing against Governor Ducey and
10 the State of Arizona the Final Rule’s unlawful restriction on programs that allegedly
11 undermine efforts to stop the spread of COVID-19 or discourage compliance with
L.L.P.
12 recommendations and guidelines in CDC guidance for stopping the spread of COVID-19.
Snell & Wilmer
13 D. Permanently enjoin Defendants from withholding or recouping SLFRF
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14 monies from the State of Arizona based on the conditions of the Plus-Up and ERB
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15 programs;
Phoenix, Arizona 85004-2202 16 E. Awarding Plaintiff reasonable costs and expenses of this action, including
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17 attorneys’ fees; and
18 F. Grant other such relief as may be just and proper.
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Case 2:22-cv-00112-SPL Document 1 Filed 01/21/22 Page 24 of 24
1 DATED this 21st day of January, 2022.
2 GENERAL COUNSEL
3
4 By: /s/ Anni L. Foster
Anni L. Foster
5 Office of Governor Douglas A. Ducey
1700 West Washington Street
6 Phoenix, Arizona 85007
7
8 SNELL & WILMER L.L.P.
9
10 By: /s/ Brett W. Johnson
Brett W. Johnson
11 Colin P. Ahler
Derek C. Flint
L.L.P.
12 Ian R. Joyce
One Arizona Center
Snell & Wilmer
13 400 E. Van Buren, Suite 1900
LAW OFFICES Phoenix, Arizona 85004-2202
14
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15
Phoenix, Arizona 85004-2202 16
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