Motion for Preliminary Injunction — Noerand v. DeVos (D. Mass., Doc. 2, July 6, 2020)

Summary

Plaintiff's Motion for Preliminary Injunction by Farah Noerand against Betsy DeVos, in her official capacity as Secretary of the United States Department of Education, and the United States Department of Education, No. 1:20-cv-11271, Document 2, filed 07/06/20, in the U.S. District Court for the District of Massachusetts. Under Fed. Rule Civ. P. 65(a) and 6(c)(1)(C), the motion asks the Court to enjoin enforcement of the Department's Interim Final Rule, 85 Fed. Reg. 36494, June 17, 2020, as to all institutions of higher education in Massachusetts during the pendency of the action. It states that the rule creates an eligibility exclusion for emergency aid for non-Title IV-eligible students that runs counter to the CARES Act. It attaches a Proposed Order as Exhibit A and requests oral argument.

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“Motion for Preliminary Injunction — Noerand v. DeVos (D. Mass., Doc. 2, 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-2-july-6-2020-3d6cad7e08/, SHA-256 7f1d7a3fa592d551cbb969ea65cb8b24e07a486496acc405c3ae673a4227860b.

Full text

Case 1:20-cv-11271-LTS Document 2 Filed 07/06/20 Page 1 of 4

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

FARAH NOERAND,

Plaintiff,
No. 1:20-cv-11271
v.

BETSY DEVOS, in her official capacity as
Secretary of the United States Department of
Education,

and

THE UNITED STATES DEPARTMENT OF
EDUCATION,

Defendants.

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Pursuant to Fed. Rule Civ. P. 65(a) and 6(c)(1)(C), Plaintiff Farah Noerand hereby moves

for a preliminary injunction, to enjoin enforcement by the Department of Education (the

“Department”) of the “Eligibility of Students at Institutions of Higher Education for Funds under

the Coronavirus Aid, Relief, and Economic Security (CARES) Act” Interim Final Rule, 85 Fed.

Reg. 36494, June 17, 2020 (the “IFR”) as to all institutions of higher education in Massachusetts

during the pendency of this action. A preliminary injunction is appropriate for the following

reasons, as more fully detailed in the accompanying Memorandum of Law:

1. The IFR oversteps the Department’s authority to implement the CARES Act by creating

an eligibility exclusion for emergency aid for non-Title IV-eligible students that runs

counter to the CARES Act’s clear instructions. Because the IFR does not accord with the

law, it should be set aside by this Court. See 5 U.S.C. § 706(2).

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Case 1:20-cv-11271-LTS Document 2 Filed 07/06/20 Page 2 of 4

2. Plaintiff is likely to succeed on the merits because the relevant text of the CARES Act is

not ambiguous, which means the Department is not free to re-define terms in the CARES

Act to suit its own policy preferences. The IFR relies upon a strained and internally-

contradictory reading of the CARES Act in an attempt to create ambiguity where

Congress’ instructions are clear. At least two federal district courts have already enjoined

enforcement of the IFR as to institutions of higher education in California and

Washington on precisely this basis.

3. The IFR has harmed and will continue to harm Plaintiff because it instructs institutions of

higher education – including Bunker Hill Community College, which Plaintiff attends –

to make grants of emergency CARES Act funding while excluding Plaintiff from such

relief. Because the Department has barred the Plaintiff from seeking the relief

apportioned by Congress to help her during the COVID-19 emergency, she is left to face

unexpected costs associated with now-necessary remote instruction on her own. Because

these costs threaten her ability to continue her education, loss of the chance to apply for

aid poses irreparable harm to Plaintiff.

4. The balance of equities and public interest favor issuance of an injunction. Plaintiff will

continue to be harmed if the IFR remains in place, whereas the Department cannot be

said to be harmed by being forced to administer the CARES Act as written. The broad

sweep of the IFR likewise imbues Plaintiff’s effort with a strong public interest, as

thousands of students who – like Plaintiff – are ineligible for emergency aid due to

immigration status are likewise harmed by the IFR.

Attached hereto as Exhibit A is a Proposed Order.

Request for Oral Argument

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Case 1:20-cv-11271-LTS Document 2 Filed 07/06/20 Page 3 of 4

Pursuant to Local Rule 7.1(d), Plaintiff requests an oral argument on the Motion.

Because of the various aspects of the preliminary injunction test and because the Motion is being

filed contemporaneously with the Complaint, oral argument would be of assistance to the Court

in evaluating the positions of the parties.

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

Dated: July 6, 2020

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Certificate of Service

I hereby certify that on July 6, 2020, I electronically transmitted the attached document

to the Clerk of the Court using the Electronic Case Filing System for filing. Based on the records

currently on file in this case, the Clerk will transmit a Notice of Electronic Filing to those

registered participants of the ECF System.

/s/ Rachel C. Hutchinson

Rachel C. Hutchinson

Certification Pursuant to Local Rule 7.1(a)(2)

I hereby certify that on July 2, 2020, I conferred with Attorney Ray Farquhar, Chief –

Defensive Litigation, Civil Division of the United States Attorney’s Office for the District of

Massachusetts, in advance of filing the complaint in this action and the Motion for Preliminary

Injunction, and was advised that the Department is unlikely to agree to entry of a preliminary

injunction.

/s/ Jeremy W. Meisinger

Jeremy W. Meisinger

B5152370.2 4

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