Verified Complaint — Noerand v. DeVos (D. Mass., Doc. 1, July 6, 2020)
Summary
Verified Complaint by Farah Noerand, a student at Bunker Hill Community College, against Betsy DeVos, in her official capacity as Secretary of the United States Department of Education, and the United States Department of Education, Case 1:20-cv-11271-LTS, Document 1, filed 07/06/20, in the U.S. District Court for the District of Massachusetts. The complaint alleges that the Department limited Higher Education Emergency Relief Fund assistance under the CARES Act to students who qualify for financial aid under Title IV of the Higher Education Act. The prayer for relief asks the Court to set aside the Title IV eligibility requirements in the April 21, 2020 FAQ Guidance and the HEERF Interim Final Rule and to permanently enjoin the Defendants from enforcing them.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Verified Complaint — Noerand v. DeVos (D. Mass., Doc. 1, July 6, 2020).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/document-noerand-v-devos-no-1-20-cv-11271-d-mass-doc-1-july-6-2020-0b0430229e/
, SHA-256 3727391aebd87bf98f3a789770c634e4a011b2fc216091960ae0400c48ba9f1b.Full text
Case 1:20-cv-11271-LTS Document 1 Filed 07/06/20 Page 1 of 14
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
FARAH NOERAND,
Plaintiff,
No.
v.
BETSY DEVOS, in her official capacity as
Secretary of the United States Department of
Education,
And
THE UNITED STATES DEPARTMENT OF
EDUCATION
Defendants.
VERIFIED COMPLAINT
INTRODUCTION
1. Plaintiff Farah Noerand, a Haitian student at Bunker Hill Community College in
Charleston, Massachusetts (“Farah” or “Plaintiff”), brings this lawsuit to stop the U.S. Department
of Education (the “Department”) from placing arbitrary eligibility restrictions on emergency
assistance available under the Coronavirus Aid, Relief, and Economic Security Act 1 (the “CARES
Act” or “Act”) for distribution by institutions of higher education to students (“Higher Education
Emergency Relief Fund Assistance” or “HEERF Assistance”).
2. Despite Congress’s clear mandate that the Department disperse aid to higher
education institutions to make “emergency financial aid grants to students,” with no restriction on
student eligibility, the Department has implemented its own unlawful policy preferences and
1
116 P.L. 136, 134 Stat. 281, March 27, 2020.
1
limited HEERF assistance to students who qualify for financial aid under Title IV of the Higher
Education Act (“Title IV”). In doing so, the Department has excluded hundreds of thousands of
students who, like Plaintiff, do not qualify for Title IV due to their immigration status, including
students enrolled in the Deferred Action for Childhood Arrivals (“DACA”) program, students with
pending asylum applications, students who have been granted a U-Visa as victims of criminal
activity, students with Withholding of Removal status, students with Temporary Protected Status
(“TPS”), and undocumented students. These students, many of who are among the most
vulnerable and in need of relief, are now ineligible to receive assistance from their colleges and
universities during an ongoing national health crisis.
3. To arrive at its chosen policy position, the Department has dithered, reversed itself,
and ultimately manufactured a statutory ambiguity where none exists. The CARES Act is clear in
its command that the Department aid “students,” not “students who are eligible for Title IV.” No
provision of the CARES Act restricts HEERF assistance to Title IV eligible students, incorporates
Title IV’s eligibility requirements into HEERF assistance, imposes restrictions on the types of
students eligible for aid, or confers discretion on the Department to set eligibility conditions based
on Title IV. Because the Department’s eligibility restrictions violate Congress’ clear command in
the CARES Act, they must be set aside under the Administrative Procedure Act as arbitrary and
capricious and in excess of statutory authority.
4. The Department’s restrictions irreparably harm Plaintiff at a time when she needs
help the most. Like many, Plaintiff lost her job as a result of Massachusetts’ stay-at-home order
for non-essential workers. She now faces new and unexpected costs due to the sudden shift to
online learning and the closure of her school’s campus, including the cost of purchasing a working
laptop, paying for internet access, and purchasing household items and food normally available
through her school’s food pantry at low or no cost. Plaintiff’s inability to afford a functioning
2
laptop or reliable internet access severely interferes with her opportunity to obtain an education on
equal terms with her classmates.
5. Because Plaintiffs’ needs are acute and immediate, and the Department’s actions
are incompatible with the plain language of the CARES Act, this Court should join at least two
other federal district courts in setting the Department’s actions aside immediately.
JURISDICTION AND VENUE
6. The Court has jurisdiction pursuant to 28 U.S.C. § 1331 because this action arises
under federal law.
7. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(e) because Plaintiff
resides in this district and this action seeks relief against a federal agency and its official acting in
her official capacity.
PARTIES
8. Plaintiff Farah Noerand is a resident of Charleston, Massachusetts. She is a student
at Bunker Hill Community College, and is currently enrolled in Bunker Hill’s summer session
from June 1, 2020 through July 13, 2020. She holds Temporary Protected Status as a Haitian
national, and has been lawfully present in the U.S. for almost a decade.
9. Defendant Department of Education is an executive department of the United States
pursuant to 5 U.S.C. § 101, a federal agency within the meaning of 28 U.S.C. § 2671, and engages
in agency action within the meaning of 5 U.S.C. § 702. The Department is responsible for
administering the HEERF.
10. Defendant Betsy DeVos is the Secretary of the Department of Education. She is
sued in her official capacity pursuant to 5 U.S.C. § 702. Secretary DeVos is required to distribute
HEERF Assistance in accordance with the CARES Act.
FACTUAL ALLEGATIONS
3
I. Congress Establishes the HEERF
11. The CARES Act, the third and largest stimulus package passed by Congress to
address the economic fallout from the COVID-19 pandemic, was signed into law on March 27,
2020. The Act provides over $2 trillion in federal aid to individuals, businesses, and state and
local governments.
12. The Act allocates $14 billion to a Higher Education Emergency Relief Fund
(“HEERF”), approximately $12.56 billion of which the Department must disperse to higher
education institutions under a precise formula set out by Congress. See CARES Act, §
18004(a)(1). Specifically, funding is apportioned to each higher education institution as follows:
75 percent based on the institution’s relative share of the full-time equivalent (“FTE”) enrollment
of Federal Pell Grant recipients, and 25 percent based the institution’s relative share of FTE
enrollment of all other students, with both categories excluding students who, prior to the
pandemic, were only enrolled in online learning. Id. The latter part of the formula—allocating 25
percent of funds based on an institution’s FTE enrollment of all non-Pell Grant students—includes
all non-Pell Grant students, including students not eligible for financial aid under Title IV.
13. Once funding has been apportioned, the CARES Act broadly authorizes higher
education institutions to use HEERF grants “to cover any costs associated with significant changes
to the delivery of instruction due to the coronavirus” subject to two limitations. Id. at § 18004(c).
First, the funds cannot be used for “payments to contracts for the provision of pre-enrollment
recruitment activities; endowments; or capital outlays associated with facilities related to athletics,
sectarian instruction, or religious worship.” Id. Second, at least 50 percent of each institution’s
allocation must be used to provide “emergency financial aid grants to students for expenses related
to the disruption of campus operations due to coronavirus (including eligible expenses under a
4
student’s cost of attendance, such as food, housing, course materials, technology, health care, and
child care)” (referred to here as HEERF Assistance). Id.
14. Beyond these two restrictions, the CARES Act does not impose any limitations on
how institutions allocate HEERF assistance. It also does not impose any eligibility limitations on
HEERF assistance for students. This is no accident. When Congress intended to set specific
eligibility criteria in other CARES Act programs, it spoke clearly. See, e.g. CARES Act at §
6428(d) (excluding “nonresident alien[s]” and other enumerated individuals from receiving
rebates). Congress purposefully distinguished HEERF grants from other student funding sources
in the CARES Act, which are subject to Title IV eligibility requirements. See, e.g., id. at § 3504
(permitting the use of an institution’s allotment under Title IV to issue emergency financial aid
grants to students); § 3505 (authorizing higher education institutions to use Title IV funds to make
payments to affected work-study students).
II. The Department Issues Conflicting Interpretations of HEERF Assistance Eligibility
A. The April 9, 2020 Guidance
15. Initially, the Department acknowledged that HEERF assistance was available to all
students under the CARES Act. On April 9, 2020, the Department publicized the availability of
$12.56 billion in HEERF funds, including $6.28 billion in HEERF assistance to students, 2 and
announced grant allocations to individual institutions based on the formula set forth by Congress
in § 18004(a)(1) of the Act.3 When calculating allocations based on the FTE enrollment of non-
2
Secretary DeVos Rapidly Delivers More Than $6 Billion in Emergency Cash Grants for College Students Impacted
by Coronavirus Outbreak, U.S. Dep’t of Educ. (April 9, 2020), https://www.ed.gov/news/press-releases/secretary-
devos-rapidly-delivers-more-6-billion-emergency-cash-grants-college-students-impacted-coronavirus-outbreak.
3
Allocations for Section 18004(a)(1) of the CARES Act,
https://www2.ed.gov/about/offices/list/ope/allocationstableinstitutionalportion.pdf (last accessed July 1, 2020).
5
Pell Grant students, the Department correctly used enrollment data that included all full-time
equivalent students not exclusively enrolled in distance learning prior to COVID. This allocation
included students ineligible for Title IV. 4
16. The same day as these announcements, Secretary DeVos published a letter to
colleges and universities emphasizing each institution’s broad discretion to allocate HEERF funds,
stating that “each institution may develop its own system and process for determining how to
allocate these funds, which may include distributing the funds to all students or only to students
who demonstrate significant need.” 5 Relying on the text of the CARES Act itself, Secretary
DeVos acknowledged that “the only statutory requirement is that the funds be used to cover
expenses related to the disruption of campus operations due to coronavirus (including eligible
expenses under a student’s cost of attendance, such as food, housing, course materials, technology,
health care, and child care).” Id.
17. Secretary DeVos’s letter went on to state that each higher education institution was
required to complete a certification form acknowledging that the institution would comply with
the terms and conditions of funding before it could receive HEERF funds. Id. The form
certification, also made available April 9, 2020, acknowledged that the “Secretary does not
4
See Methodology for Calculating Allocations per Section 18004(a)(1) of the CARES Act, U.S. Dep’t of Educ.,
https://www2.ed.gov/about/offices/list/ope/heerf90percentformulaallocationexplanation.pdf (identifying use of data
from Integrated Postsecondary Education Data System (IPEDS) system) (last accessed July 1, 2020); IPEDS Data
Explorer, National Center for Education Statistics,
https://nces.ed.gov/ipeds/Search?query=&query2=&resultType=all&page=1&sortBy=date_desc&overlayTableId=2
5211 (aggregate IPEDS data, including category for “nonresident alien” students) (last accessed July 1, 2020).
5
Secretary DeVos Letter to College and University Presidents, U.S. Dep’t of Educ. (April 9, 2020),
https://www2.ed.gov/about/offices/list/ope/caresactgrantfundingcoverletterfinal.pdf (emphasis added).
6
consider these individual emergency financial aid grants to constitute Federal financial aid under
Title IV.”6
B. The April 21, 2020 Guidance
18. On April 21, 2020, the Department abruptly reversed its position on HEERF student
eligibility. In a document titled “Frequently Asked Questions about the Emergency Financial Aid
Grants to Students under Section 18004 of the Coronavirus Aid, Relief, and Economic Security
(CARES) Act,” published on the Department’s website on April 21, 2020 (“FAQ Guidance”), the
Department stated that “[o]nly students who are or could be eligible to participate in programs
under Section 484 in Title IV of the Higher Education Act of 1965, as amended (“HEA”), may
receive emergency financial aid grants.” Id. at 4. The FAQ Guidance expressly stated that only
U.S. citizens or “eligible noncitizens” could receive funding. Id.
III. The Department Publishes an Interim Final Rule Restricting HEERF Assistance
Eligibility in A Manner Contrary to Congress’ Express Direction in the CARES Act
19. On May 21, 2020, the Department published a statement on its website arguing that
its prior FAQ Guidance “lack[ed] the force and effect of law.” 7 Despite this, the Department
reiterated its position that HEERF assistance was only available to students who “are or could be
eligible to participate in [Title IV] programs” and stated that it would “take further action shortly”
with respect to student eligibility. Id.
6
Recipient’s Funding Certification and Agreement: Emergency Financial Aid Grants to Students under the
Coronavirus Aid, Relief, and Economic Security (CARES) Act, U.S. Dep’t of Educ.,
https://www2.ed.gov/about/offices/list/ope/heerfstudentscertificationagreement42020.pdf (last accessed July 1,
2020).
7
CARES Act: Higher Education Emergency Relief Fund—Updated Statement 5/21/2020, U.S. Dep’t of Educ. (April
9, 2020), https://www2.ed.gov/about/offices/list/ope/caresact.html (last accessed July 1, 2020).
7
20. That “further action” took the form of an interim final rule published in the Federal
Register on June 17, 2020 (the “IFR”),8 the stated purpose of which was “to ensure taxpayer-
funded coronavirus relief money… does not go to foreign nationals, non-citizens, and students
who may be enrolled in ineligible education programs.”9 With the IFR, the Department included
a statement from Secretary DeVos that “the CARES Act was written to help “Americans 10 recover
from the coronavirus pandemic,” and that “foreign nationals and most other non-citizens would
not be eligible” for HEERF assistance. Id.
21. The IFR contains a single regulatory change: it redefines the word “student” in
CARES Act § 18004 to mean only students “who are, or could be eligible” to participate in
programs under Title IV. By importing Title IV eligibility into HEERF, the IFR excludes hundreds
of thousands of non-citizen students from HEERF assistance, including DACA recipients, asylum
applicants, Withholding of Removal grantees, U-Visas beneficiaries, and Temporary Protected
Status recipients like Plaintiff. 11
IV. Plaintiff Attempts to Obtain Aid
A. Plaintiff’s Background and Struggles During COVID-19
22. A survivor of the devastating January 12, 2010 Haiti earthquake, Farah was
medically evacuated from Haiti to Shriners Hospital for Children at age fourteen after she
sustained severe burns in an electrical fire. In December 2011, she obtained Temporary Protected
8
Eligibility of Students at Institutions of Higher Education for Funds under the Coronavirus Aid, Relief, and Economic
Security (CARES) Act, 85 Fed. Reg. 36494, Department of Education, June 17, 2020.
9
U.S. Department of Education Issues Rule to Protect American Taxpayers from Waste, Fraud, and Abuse, Ensure
COVID-19 Relief Funds Get to Eligible Students, U.S. Dep’t of Educ. (June 11, 2020),
https://www.ed.gov/news/press-releases/us-department-education-issues-rule-protect-american-taxpayers-waste-
fraud-and-abuse-ensure-covid-19-relief-funds-get-eligible-students.
10
Plaintiff notes that some non-citizen students are eligible for Title IV and fall within Title IV’s eligibility restrictions.
11
See 20 U.S.C. § 1091(a)(5).
8
Status, which she still holds. As such, she is ineligible for assistance under Title IV pursuant to
Defendants’ longstanding Title IV immigrant eligibility restrictions.
23. Farah currently attends Bunker Hill Community College (“Bunker Hill”), a multi-
campus community college serving the Greater Boston area. She has been enrolled since
September 2016, and is pursuing a degree in early childhood education. Like many college
students, she has been negatively impacted by the COVID-19 crisis. As a result of Massachusetts
Governor Charlie Baker’s emergency stay-at-home advisory for all non-essential businesses,
Farah lost her job at Charleston YWCA, where she worked with young children. She also faces
new and unexpected costs due to the closure of Bunker Hill’s campus, including the cost of
purchasing a functioning laptop and paying for reliable high-speed internet in order to access
online classes. Prior to the COVID-19 crisis, Farah completed her coursework on computers and
internet made available to students on Bunker Hill’s campus. Farah is also incurring new out-of-
pocket costs for food, household items, and sanitary products, which she previously accessed
through Bunker Hill’s food pantry at no or low cost.
24. Because of the unexpected, sudden, and significant nature of these costs, Farah
faces severe difficulty in covering costs for the current semester. Having been unable to afford a
working laptop, Farah has been accessing her summer courses through a combination of her phone
and a malfunctioning laptop, and so has encountered difficulty in completing her summer courses.
Her ability to attend classes in the fall is also in jeopardy, as Bunker Hill presently plans to conduct
a “virtual campus” with “mostly remote” classes with respect to the Fall semester. 12
12
See BHCC Virtual Campus—Fall 2020, https://www.bhcc.edu/virtualcampus/ (last accessed July 6, 2020) (“To
ensure the health and safety of all students, faculty and staff, most fall 2020 classes will be taught remotely through a
few different course types.”).
9
B. Plaintiff Requests Assistance from Bunker Hill
25. According to its website, Bunker Hill signed and completed the required
certification for HEERF assistance on April 10, 2020, anticipating receipt of around $4 million in
funds. As of June 1, 2020, Bunker Hill had identified 5,830 students eligible to receive emergency
financial aid grants and distributed around $2.8 million in funds to those students, stating that “[i]n
order to be eligible, a student must have a valid 2019-2020 FAFSA on file.”
26. On June 5, 2020, Plaintiff’s attorney sent a letter to Bunker Hill requesting
emergency assistance to pay for “the cost of acquiring a laptop to access remote learning, the cost
of internet access, higher utility bills for completing work at home instead of campus, cost of items
normally provided at the food pantry, such as free hygiene products, and low-cost food options at
the school cafeteria, and other costs which are not known exactly at the present moment, such as
course materials usually available on campus.”
27. In response to the letter, Bunker Hill informed Plaintiff that, “Based on the guidance
we have received from the Dept. Of Education, students who would not be eligible for Title IV aid
are not eligible for CARES act funds.”
COUNT I
Violation of the Administrative Procedure Act (“APA”)
(Arbitrary and Capricious Agency Action)
28. Plaintiff repeats and reasserts the allegations in the proceeding paragraphs, and
incorporate them by reference.
29. The APA requires that a court “hold unlawful and set aside agency action, findings,
and conclusions found to be … arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 5 U.S.C. § 706(2)(A).
10
30. Both the FAQ Guidance and the IFR are arbitrary, capricious, and an abuse of
discretion as they forbid institutions from aiding students whom Congress directed be eligible for
aid by institutions of higher education.
31. The CARES Act directs that “students,” not “students who are, or could be eligible
to participate in programs under Title IV,” be eligible for HEERF assistance; as such, the exclusion
created by the Department does not accord with the plain meaning and direction of the language
of the CARES Act. The CARES Act (1) does not exclude non-Title IV-eligible students, (2)
explicitly does incorporate non-Title IV students in its allocation of funds, and (3) elsewhere
specifies explicitly when it is referring to students eligible for Title IV and does not do so in §
18004.
32. Absent injunctive and declaratory relief suspending and vacating the FAQ
Guidance and IFR, Plaintiff will continue to be immediately, continuously, and irreparably injured
by Defendants’ illegal actions.
COUNT II
Violation of the Administrative Procedure Act
(Agency Action in Excess of Statutory Authority)
33. Plaintiff repeats and reasserts the allegations in the proceeding paragraphs, and
incorporate them by reference.
34. The APA requires that a court “hold unlawful and set aside agency action, findings,
and conclusions found to be … in excess of statutory jurisdiction, authority, or limitations, or short
of statutory right.” 5 U.S.C. § 706(2)(A).
35. As a federal agency, the Department does not have authority to interpret federal
statutes beyond the confines of the authority granted by the statutory text.
36. Congress did not grant the Department authority to condition student eligibility for
HEERF assistance under CARES Act § 18004 on Title IV eligibility. The CARES Act directs, in
11
simple terms, that aid be available to “students,” which CARES Act § 18004 states includes full-
time equivalent students who are not exclusively enrolled in distance learning.
37. Both the Department’s FAQ Guidance and IFR are unauthorized by and contrary
to CARES Act § 18004(c), and are therefore is in excess of the Department’s statutory authority.
38. Moreover, in interpreting federal statutes, courts have long required that conditions
attached to federal funds allocated to institutions or individuals must be stated unambiguously by
Congress. In fashioning its own unlawful eligibility condition based upon its policy preferences,
the Department has overstepped its constitutional role to implement Congress’ wishes, not its own.
39. For this reason too, the FAQ Guidance and IFR are contrary to law, and must be
set aside as ultra vires.
40. Absent injunctive and declaratory relief suspending and vacating the FAQ
Guidance and IFR, Plaintiff will be continue to be immediately, continuously, and irreparably
injured by Defendants’ illegal actions.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this Court enter judgment in her favor
and grant the following relief:
a. Set aside the Title IV eligibility requirements set forth in the April 21, 2020 FAQ
Guidance;
b. Set aside the HEERF Interim Final Rule;
c. Permanently enjoin the Defendants from imposing and enforcing eligibility
requirements based on Title IV eligibility on HEERF Assistance in violation of the
CARES Act;
d. Grant such other relief as the Court may deem just and proper.
12
VERIFICATION
I, Farah Noerand, verify under penalty of perjury that the allegations herein are true or, if
stated on information and belief, are believed to be true.
Dated: -1-b1?,o '
VO.)COA 1\/(Y'V.ANICL
Farah Noerand
13
Dated: July 6, 2020
Respectfully submitted,
FARAH NOERAND
By her attorneys,
/s/ Rachel C. Hutchinson
Dean Richlin (Bar Roll No. 419200)
Jeremy W. Meisinger (Bar Roll No. 688283)
Rachel C. Hutchinson (Bar Roll No. 696739)
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, Massachusetts 02210-2600
Telephone: (617) 832-1000
Facsimile: (617) 832-7000
Iris Gomez (Bar Roll No. 201000)
Deirdre M. Giblin (Bar Roll No. 566547)
MASSACHUSETTS LAW REFORM
INSTITUTE
40 Court Street, Suite 800
Boston, MA 02108
14
File and source
- File
- 1-complaint-against-united-states-department-of-education-bets.pdf
- Size
- 837,484 bytes
- SHA-256
- 3727391aebd87bf98f3a789770c634e4a011b2fc216091960ae0400c48ba9f1b
- Original
- storage.courtlistener.com