Memorandum in Support, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 36-1 (August 11, 2020)
Summary
Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Preliminary Injunctive Relief or, in the Alternative, for Summary Judgment, filed 08/11/20 as Document 36-1 in NAACP et al. v. DeVos, Case No. 1:20-cv-01996 (DLF), in the District of Columbia. It states that the CARES Act appropriated $16.5 billion to elementary and secondary public schools, and alleges the Secretary of Education and the Department decided without delegated authority to funnel hundreds of millions of those dollars away from public schools through a rule. It asks the Court to grant preliminary injunctive relief or, in the alternative, enter judgment for Plaintiffs and vacate the Rule. The signature block shows /s/ Adele M. El-Khouri of Munger, Tolles & Olson LLP.
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
“Memorandum in Support, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 36-1 (August 11, 2020).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/memorandum-in-support-naacp-et-al-v-devos-no-1-20-cv-01996-d-d-c-doc-3-deaa2bfa42/
, SHA-256 6dcdd9602a3d72df71fe78e01cf547f2e31b83c693cb5b58f204cbef83653a19.Full text
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 1 of 59
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE Case No. 1:20-cv-01996 (DLF)
(NAACP), et al.,
Plaintiffs,
vs.
ELISABETH “BETSY” D. DEVOS, in her official
capacity as the United States Secretary of Education,
and the UNITED STATES DEPARTMENT OF
EDUCATION,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY INJUNCTIVE RELIEF OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 2 of 59
TABLE OF CONTENTS
Page
INTRODUCTION ...........................................................................................................................1
STATUTORY AND FACTUAL BACKGROUND .......................................................................4
I. THE CARES ACT .....................................................................................................4
A. Governor’s Emergency Education Relief (“GEER”) Fund .....................................5
B. Elementary and Secondary School Emergency Relief (“ESSER”) Fund ................6
C. Equitable Services for Private-School Students ......................................................7
II. THE APRIL 30, 2020 GUIDANCE DOCUMENT & PUBLIC RESPONSE ...........................9
III. THE DEPARTMENT’S RULE .....................................................................................10
IV. THE COMPLAINT .....................................................................................................11
LEGAL STANDARD ....................................................................................................................14
ARGUMENT .................................................................................................................................14
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS. .........................14
A. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that the
Rule is Ultra Vires in Violation of the Separation of Powers................................14
1. Congress delegated no rulemaking authority to the Secretary in the
CARES Act. ...............................................................................................15
2. The Secretary does not have rulemaking authority under the
general rulemaking provisions. ..................................................................16
3. Defendants cannot substitute their policy preferences for
Congress’s decisions. .................................................................................17
4. The Rule is not entitled to Chevron deference...........................................18
5. The Rule’s attempt to limit spending to only Title I schools and its
requirement that the funding “supplement, not supplant” current
expenditures are also ultra vires. ...............................................................21
B. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that the
Rule Violates the Spending Clause of the United States Constitution. .................22
C. Plaintiffs Are Likely to Succeed on the Merits of Their APA Claims. .................23
1. The Rule is ripe for review under the APA. ..............................................23
2. The Rule was an agency action in excess of statutory authority and
not in accordance with law. .......................................................................23
3. The Rule was arbitrary and capricious.......................................................25
4. The Rule was enacted without observance of procedure required
by law. ........................................................................................................28
i
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 3 of 59
TABLE OF CONTENTS
(Continued)
Page
(a) Promulgation of the Rule with notice-and-comment was
neither “impracticable” nor “unnecessary.” ...................................29
(b) Promulgation of the Rule without notice and comment was
not in the “public interest.” ............................................................30
II. PLAINTIFFS WILL BE IRREPARABLY HARMED ABSENT INJUNCTIVE RELIEF. ......................31
A. Plaintiffs Will Suffer Irreparable Harm to Public-School Students’ Health
Absent an Injunction. .............................................................................................34
B. Plaintiffs Will Suffer Irreparable Harm to Public-School Students’
Education Absent an Injunction. ............................................................................35
C. Even if Plaintiffs’ Harms Were Merely “Economic,” Those Harms Are
Irreparable Because the Losses of CARES Act Funds Are Imminent,
Certain, and Unrecoverable. ..................................................................................37
D. Plaintiffs Will Face Irreparable Administrative and Legal Burdens Absent
an Injunction. .........................................................................................................40
III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR PLAINTIFFS. ............................41
IV. PLAINTIFFS ARE ENTITLED TO NATIONWIDE RELIEF. .........................................................42
V. ALTERNATIVELY, PLAINTIFFS ARE ENTITLED TO EXPEDITED SUMMARY JUDGMENT. .........44
CONCLUSION ..............................................................................................................................45
ii
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 4 of 59
TABLE OF AUTHORITIES
Page
FEDERAL CASES
Aamer v. Obama,
742 F.3d 1023 (D.C. Cir. 2014) ...............................................................................................41
Agua Caliente Band of Chuilla Indians v. Mnuchin, No. 20-cv-01136 (APM),
2020 WL 325071 (D.D.C. June 15, 2020) ..............................................................................35
Aid Ass’n for Lutherans v. U.S. Postal Serv.,
321 F.3d 1166 (D.C. Cir. 2003) .........................................................................................15, 16
In re Aiken County,
725 F.3d 255 (D.C. Cir. 2013) .................................................................................................17
Al-Joudi v. Bush,
406 F. Supp. 2d 13 (D.D.C. 2005) ...........................................................................................34
Allina Health Servs. v. Sebelius,
746 F.3d 1102 (D.C. Cir. 2014) ...............................................................................................42
Am. Fed’n of Gov’t Emps., AFL-CIO v. Block,
655 F.2d 1153 (D.C. Cir. 1981) ...............................................................................................31
Am. Hosp. Ass’n v. Dep’t of Health & Hum. Srvs.,
No. 18-2112 (JDB), 2018 WL 5777397 (D.D.C. Nov. 2, 2018) .............................................45
Am. Trucking Ass’ns, Inc. v. City of Los Angeles,
559 F.3d 1046 (9th Cir. 2009) .................................................................................................40
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) .................................................................................................................23
Asante v. Azar,
No. 20-CV-601 (TSC), 2020 WL 1930263 (D.D.C. Apr. 21, 2020) .................................33, 37
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) .............................................................................................................20
Banks v. Booth,
No. 20-849 (CKK), 2020 WL 3303006 (D.D.C. June 18, 2020).............................................34
Barnes v. Gorman,
536 U.S. 181 (2002) .................................................................................................................23
iii
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 5 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Blackman v. District of Columbia,
185 F.R.D. 4 (D.D.C. 1999)...............................................................................................34, 36
Blue Water Navy Viet. Veterans Ass’n, Inc. v. McDonald,
830 F.3d 570 (D.C. Cir. 2016) .................................................................................................42
Bowen v. Georgetown Univ. Hosp.,
488 U.S. 204 (1988) .................................................................................................................24
California v. Azar,
911 F.3d 558 (9th Cir. 2018) .............................................................................................37, 43
Career Coll. Ass’n v. Riley,
74 F.3d 1265 (D.C. Cir. 1996) .................................................................................................23
Chevron, U.S.A. v. Natural Resources Defense Council,
467 U.S. 837 (1984) .....................................................................................................18, 19, 24
City of Chi. v. Barr,
961 F.3d 882 (7th Cir. 2020) ...................................................................................................22
City of Los Angeles v. Barr,
941 F.3d 931 (9th Cir. 2019) ...................................................................................................15
City of Philadelphia v. Att’y Gen. of U.S.,
916 F.3d 276 (3d Cir. 2019).....................................................................................................15
Clinton v. City of New York,
524 U.S. 417 (1998) .................................................................................................................18
Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n,
466 F.3d 134 (D.C. Cir. 2006) .................................................................................................24
Confederated Tribes of Chehalis Reservation v. Mnuchin,
No. 20-CV-01002 (APM), 2020 WL 1984297 (D.D.C. Apr. 27, 2020)......................14, 33, 34
Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) .................................................................................................................19
Council of S. Mountains, Inc. v. Donovan,
653 F.2d 573 (D.C. Cir. 1981) .................................................................................................29
Cox v. Brown,
498 F. Supp. 823 (D.D.C. 1980) ..............................................................................................36
iv
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 6 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Davenport v. Int’l Bd. of Teamsters,
166 F.3d 356 (D.C. Cir. 1999) .................................................................................................14
Davis v. Pension Benefit Guar. Corp.,
571 F.3d 1288 (D.C. Cir. 2009) ...............................................................................................14
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
140 S. Ct. 1891 (2020) .......................................................................................................27, 28
District of Columbia v. U.S. Dep’t of Agric.,
No. CV 20-119 (BAH), 2020 WL 1236657 (D.D.C. Mar. 13, 2020) ................................43, 44
Doe 1 v. Trump,
275 F. Supp. 3d 167 (D.D.C. 2017) .........................................................................................43
Doe v. Rumsfeld,
341 F. Supp. 2d 1 (D.D.C. 2004) .............................................................................................43
Doe, 1 v. FEC,
920 F.3d 866 (D.D.C. 2019) ....................................................................................................25
Doeskin Prods., Inc. v. United Paper Co.,
195 F.2d 356 (7th Cir. 1952) ...................................................................................................41
Everglades Harvesting & Hauling, Inc. v. Scalia,
427 F. Supp. 3d 101 (D.D.C. 2019) .........................................................................................41
FCC v. Fox Television Stations, Inc.,
556 U.S. 502 (2009) ...........................................................................................................27, 28
Fla. Health Scis. Ctr., Inc. v. Sec’y of HHS,
830 F.3d 515 (D.C. Cir. 2016) .................................................................................................15
Greatness v. FEC,
831 F.3d 500 (D.C. Cir. 2016) .................................................................................................14
Harmon v. Thornburgh,
878 F.2d 484 (D.C. Cir. 1989) .................................................................................................42
Harris v. Bd. of Supervisors, L.A. Cty.,
366 F.3d 754 (9th Cir. 2004) ...................................................................................................40
Holland v. Nat’l Min. Ass’n,
309 F.3d 808 (D.C. Cir. 2002) .................................................................................................24
v
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 7 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Humane Soc’y of U.S. v. Zinke,
865 F.3d 585 (D.C. Cir. 2017) .................................................................................................42
J.D. v. Azar,
925 F.3d 1291 (D.C. Cir. 2019) ...............................................................................................14
Jacksonville Port Auth. v. Adams,
556 F.2d 52 (D.C. Cir. 1977) ...................................................................................................41
Jifry v. FAA,
370 F.3d 1174 (D.C. Cir. 2004) ...............................................................................................29
Kildare v. Saenz,
325 F.3d 1078 (9th Cir. 2003) .................................................................................................40
Kimberly–Clark Corporation v. District of Columbia,
286 F. Supp. 3d 128 (D.D.C. 2017) .........................................................................................41
Knight v. Comm’r,
552 U.S. 181 (2008) .................................................................................................................20
Kollaritsch v. Mich. State Univ. Bd. of Trs.,
944 F.3d 613 (6th Cir. 2019) ...................................................................................................22
L.M.-M. v. Cuccinelli,
No. 19-2676 (RDM), 2020 WL 985376 (D.D.C. Mar. 1, 2020)..............................................45
Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1,
469 U.S. 256 (1985) .................................................................................................................19
League of Women Voters of U.S. v. Newby,
838 F.3d 1 (D.C. Cir. 2016) .....................................................................................................14
Lofton v. District of Columbia.,
7 F. Supp. 3d 117 (D.D.C. 2013) .............................................................................................36
Mack Trucks, Inc. v. EPA,
682 F.3d 87 (D.C. Cir. 2012) .............................................................................................29, 31
Marshall Cty. Health Care Auth. v. Shalala,
988 F.2d 1221 (D.C. Cir. 1993) ...............................................................................................45
Methodist Hosp. of Sacramento v. Shalala,
38 F.3d 1225 (D.C. Cir. 1994) .................................................................................................29
vi
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 8 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Mittleman v. Postal Regulatory Comm’n,
757 F.3d 300 (D.C. Cir. 2014) .................................................................................................15
Morgan Stanley Cap. Grp. Inc. v. Pub. Util. Dist. No. 1,
554 U.S. 527 (2008) .................................................................................................................21
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) .......................................................................................................25, 26, 27
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
545 U.S. 967 (2005) .................................................................................................................27
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...........................................................................................................19, 23
Nat’l Min. Ass’n v. Jackson,
768 F. Supp. 2d 34 (D.D.C. 2014) .....................................................................................24, 37
Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) ...............................................................................................42
Nat’l Treasury Emps. Union v. Horner,
854 F.2d 490 (D.C. Cir. 1988) .................................................................................................26
Navajo Nation v. Azar,
292 F. Supp. 3d 508 (D.D.C. 2018) (Friedrich, J.) ..................................................................45
Navajo Nation v. Azar,
302 F. Supp. 3d 429 (D.D.C. 2018) (Friedrich, J.) ..................................................................44
New York v. United States Dep’t of Health & Human Servs.,
414 F. Supp. 3d 475 (S.D.N.Y. 2019)......................................................................................18
Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................41
NLRB. v. Sw. Gen., Inc.,
137 S. Ct. 929 (2017) ...............................................................................................................21
Oceana, Inc. v. Ross,
363 F. Supp. 3d 67 (D.D.C. 2019) ...........................................................................................25
Open Cmtys. Alliance v. Carson,
286 F. Supp. 3d 148 (D.D.C. 2017) .........................................................................................41
vii
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 9 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Orion Reserves Ltd. P’ship v. Salazar,
553 F.3d 697 (D.C. Cir. 2009) .................................................................................................25
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ...............................................................................................................22, 23
Petry v. Block,
737 F.2d 1193 (D.C. Cir. 1984) ...............................................................................................29
Planned Parenthood Fed’n of Am., Inc., v. Heckler,
712 F.2d 650 (D.C. Cir. 1983) .................................................................................................43
Protect Democracy Project, Inc. v. U.S. Dep’t of Def.,
263 F. Supp. 3d 293 (D.D.C. 2017) .........................................................................................41
Public Health Citizen Rsch. Grp. v. Auchter,
702 F.2d 1160 (D.C. Cir. 1983) ...............................................................................................35
Resolute Forest Prods., Inc. v. U.S. Dep’t of Agric.,
187 F. Supp. 3d 100 (D.D.C. 2016) .........................................................................................26
Rubin v. United States,
449 U.S. 424 (1981) .................................................................................................................19
San Francisco v. Trump,
897 F.3d 1225 (9th Cir. 2018) .................................................................................................18
Sherley v. Sebelius,
644 F.3d 388 (D.C. Cir. 2011) .................................................................................................14
Sorenson Commc’ns Inc. v. FCC.,
755 F.3d 702 (D.C. Cir. 2014) .................................................................................................29
South Dakota v. Dole,
483 U.S. 203 (1987) .................................................................................................................22
Texas Children’s Hosp. v. Burwell,
76 F. Supp. 3d 224 (D.D.C. 2014) ...............................................................................33, 37, 39
Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080 (2017) .............................................................................................................44
Univ. of Tex. v. Camenisch,
451 U.S. 390 (1981) .................................................................................................................14
viii
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 10 of 59
TABLE OF AUTHORITIES
(Continued)
Page
Util. Air Regul. Grp. v. EPA,
573 U.S. 302 (2014) .................................................................................................................16
Util. Solid Waste Activities Grp. v. EPA,
236 F.3d 749 (D.C. Cir. 2001) .....................................................................................29, 30, 31
Wilson v. Grp. Hosp. & Med. Servs., Inc.,
791 F. Supp. 309 (D.D.C. 1992) ..............................................................................................34
Winter v. Natural Resources Defense Council, Inc.,
555 U.S. 7 (2008) .....................................................................................................................14
Wis. Gas Co. v. FERC,
758 F.2d 669 (D.C. Cir. 1985) .................................................................................................38
Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952) .................................................................................................................18
FEDERAL STATUTES
5 U.S.C. ch. 5, subch. I § 500 et seq.
Administrative Procedure Act..........................................................................23, 24, 25, 28, 30
5 U.S.C. § 553 ....................................................................................................................28, 29, 30
5 U.S.C. § 704 ................................................................................................................................23
5 U.S.C. § 706 ..............................................................................................................23, 24, 25, 28
5 U.S.C. § 8501 ......................................................................................................................7, 9, 20
20 U.S.C. § 1102 ............................................................................................................................26
20 U.S.C. § 1117 ................................................................................................................ 1, passim
20 U.S.C. § 1118(b) .................................................................................................................11, 21
20 U.S.C. § 1124(c) .........................................................................................................................5
20 U.S.C. § 1221e-3 ...........................................................................................................16, 17, 24
20 U.S.C. § 3474 ......................................................................................................................16, 17
20 U.S.C. § 6313(a)(2) .....................................................................................................................7
20 U.S.C. § 6314(a)(1)(A) .............................................................................................................11
ix
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 11 of 59
TABLE OF AUTHORITIES
(Continued)
Page
20 U.S.C. § 6320(a)(4)(A) .........................................................................................................7, 19
20 U.S.C. § 6321(b)(1) ..................................................................................................................11
20 U.S.C. § 6333(c) .........................................................................................................................5
20 U.S.C. §§ 6632–6639 ..................................................................................................................6
20 U.S.C. § 7881 ....................................................................................................................7, 9, 20
Pub. L. No. 116-136, 134 Stat. 281 (2020)
(“CARES Act”), Coronavirus Aid, Relief, and Economic Security Act ..................... 4, passim
FEDERAL RULES
Fed. R. Civ. P. 65(a)(2) ..................................................................................................................44
FEDERAL REGULATIONS
34 C.F.R. § 76.665 .............................................................................................................10, 21, 38
85 Fed. Reg. 39,479 (July 1, 2020) .................................................................................. 10, passim
FEDERAL GUIDANCE
U.S. Dep’t of Educ., Ensuring Equitable Services to Private School Children: A
Title I Resource Tool Kit (Sept. 2006) .......................................................................................8
U.S. Dep’t of Educ., Title I, Part A of the Elementary and Secondary Education
Act of 1965, as Amended by the Every Student Succeeds Act: Providing
Equitable Services to Eligible Private School Children, Teachers, and
Families – Updated Non-Regulatory Guidance (Oct. 7, 2019) .................................................8
U.S. Dep’t of Educ., Title I Services to Eligible Private School Children, Non-
Regulatory Guidance (Oct. 17, 2003) ........................................................................................8
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 8......................................................................................................................22
TREATISES
Black’s Law Dictionary (10th ed. 2014)........................................................................................15
x
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 12 of 59
TABLE OF AUTHORITIES
(Continued)
Page
OTHER AUTHORITIES
Laura Meckler, Betsy DeVos defends decision to direct stimulus money to private
schools, WASH. POST, May 21, 2020 .......................................................................................10
Letter from Robert C. “Bobby” Scott, Chair, Comm. on Educ. & Labor, U.S.
House of Representatives, et al., to Betsy DeVos, Sec’y, U.S. Dep’t of Educ.
(May 20, 2020) to Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (July 31, 2020), .......................10
Letter from Robert C. “Bobby” Scott, Chair, Comm. on Educ. & Labor, U.S.
House of Representatives, et al., to Betsy DeVos, Sec’y, U.S. Dep’t of Educ.
(May 20, 2020).....................................................................................................................9, 10
Valerie Strauss, Betsy DeVos Doubles Down on Her Education Agenda During
the Pandemic, WASH. POST (May 29, 2020) ............................................................................18
xi
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 13 of 59
INTRODUCTION
In March 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act
(“CARES Act”), which—among other critical measures—appropriated $16.5 billion to
elementary and secondary public schools. Congress recognized the increased costs to public
schools for food, safety, and technology due to the pandemic as well as COVID-19’s devastating
impact on state and local revenues. In light of the urgent need for emergency relief, Congress
appropriated funds for immediate disbursement to school districts. Public schools, which serve
99% of low-income students and almost 70% of students of color in America, need every penny
that Congress allocated in these unprecedented times. Defendants Elisabeth “Betsy” D. DeVos,
the United States Secretary of Education (the “Secretary”), and the United States Department of
Education (the “Department”) have unilaterally and unlawfully decided to funnel hundreds of
millions of those dollars away from students in public schools to the benefit of affluent private-
school students. They did so by enacting, without delegated authority, a rule requiring public-
school districts to allocate CARES Act funds to private schools in a manner that is flatly
inconsistent with the plain text of the statute. This illegal diversion of funds at this perilous
moment must be halted in its tracks. Plaintiffs respectfully ask this Court to enter a preliminary
injunction to stop implementation of Defendants’ harmful rule.
Plaintiffs—the National Association for the Advancement of Colored People (“NAACP”),
individual public-school students and their parents from across the country, Broward County
Public Schools (“BCPS”), DeKalb Public Schools (“DeKalb”), Denver Public Schools (“DPS”),
Pasadena Unified School District (“Pasadena Unified”), and Stamford Public Schools (“SPS”)—
are likely to succeed on the merits of their claims. In the text of the CARES Act, Congress
expressly limited the provision of funds to private-school students, providing for allocation “in the
same manner as provided under section 1117 of the ESEA [Elementary and Secondary Education
1
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 14 of 59
Act] of 1965.” Section 1117 of the ESEA indisputably requires allocation of funds to private
schools based on the number of low-income private-school students. Likewise, for decades the
Department has recognized in its own guidance that section 1117 of the ESEA allocates funding
for the benefit of private schools based on the number of low-income private-school students.
Nevertheless, the Department inexplicably issued guidance, and then an interim final rule
(the “Rule”), requiring local educational agencies (“LEAs”) to divert CARES Act funds to private
schools based on the total private-school population, not just low-income students who attend
private schools, or else face severe limitations on the expenditure of the rest of their CARES Act
funds that appear nowhere in the Act. The Rule would result in the diversion of hundreds of
millions of dollars—which Congress appropriated to help public schools provide safe and
productive learning environments during the pandemic—away from public-school students.
The Rule violates the federal Administrative Procedure Act (“APA”) and the United States
Constitution. First, the Department exceeded its congressionally delegated authority by issuing
the Rule. The CARES Act delegates no rulemaking authority to the Department, and the Rule
cannot be reconciled with the unambiguous statutory text that it purports to interpret. The Rule
warrants no deference. Second and third, the Rule infringes on Congress’s power under the
Spending Clause and violates the constitutional separation of powers by rewriting the
appropriation established by Congress in the statute. Fourth, the Rule is arbitrary and capricious
because it is inconsistent with prior Department guidance, and is based on an interpretation so
ungrounded in the text and purpose of the CARES Act as to render it wholly implausible. Fifth,
the Rule was promulgated without observance of the procedures required by law. In light of the
direct conflict between the plain text of the statute and the Rule, Plaintiffs are highly likely to
prevail in this suit.
2
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 15 of 59
Plaintiffs will be irreparably harmed absent a preliminary injunction. The CARES Act
funds are needed now—not three, six, or twelve months from now. As Congress recognized when
it appropriated billions of dollars to public schools, this is no ordinary time. It is challenging
enough to determine how to safely and effectively educate students in a pandemic. On top of these
extraordinary challenges, the Rule is causing profound confusion and consequent delay in school
districts’ use of the CARES Act funds. Meanwhile, children’s education, health, and safety
literally hang in the balance. The last thing that vulnerable children can afford is to have large
swaths of money diverted to more affluent private-school students as this enormously difficult
school year begins. Indeed, the impact of delayed educational services on children’s learning
grows exponentially, exacerbating existing achievement gaps and creating new ones that cannot
be bridged. And, the lack of important safety equipment, supplies, and personnel could be the
difference between a student, a teacher, or a family member’s life and death—truly irreparable
consequences.
Finally, the balance of equities weighs strongly in Plaintiffs’ favor, and the public interest
warrants entry of an injunction. A preliminary injunction would merely preserve the status quo,
while causing no harm to Defendants, and preventing enormous harm to Plaintiffs and the public.
Defendants cannot suffer harm from a preliminary injunction that simply ends an unlawful
practice. Nor had private schools expected this windfall of public funds. Equitable services have
been provided the same way for decades. Continuing this practice causes no harm. The public
interest also favors protecting vulnerable public-school students and their families and ensuring
Defendants comply with Congress’s mandate concerning emergency pandemic funds. The Court
should grant Plaintiffs’ motion for preliminary injunctive relief.
In the alternative, Plaintiffs ask the Court to convert this motion to a motion for summary
judgment, expedite briefing and consideration of that motion, including submission of the
3
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 16 of 59
administrative record, and conclusively decide the facial invalidity of the Rule. Time is of the
essence in unprecedented ways.
STATUTORY AND FACTUAL BACKGROUND
I. THE CARES ACT
Congress acted to address the devastating financial effects of COVID-19 on the nation’s
communities, businesses, and public education institutions. On March 27, 2020, the Coronavirus
Aid, Relief, and Economic Security Act (“CARES Act”), Pub. L. No. 116-136, 134 Stat. 281
(2020), was signed into law. With respect to educational relief, the CARES Act created a $30.75
billion Education Stabilization Fund (“ESF”) to enable public education institutions nationwide to
“prevent, prepare for, and respond to coronavirus.” CARES Act § 18001, 134 Stat. 564-566.
The CARES Act directs the Secretary to allocate the moneys appropriated for the ESF to
three separate sub-funds: (1) the Governor’s Emergency Education Relief (“GEER”) Fund (9.8%);
(2) the Elementary and Secondary School Emergency Relief (“ESSER”) Fund (43.9%); and (3)
the Higher Education Emergency Relief (“HEER”) Fund (46.3%). CARES Act §§ 18001(b)(1)–
(3), 134 Stat. 564. 1 The Act further directs the Secretary to disburse those funds in accordance
with precise formulas. The only grant of discretionary authority to the Secretary with respect to
the funds is the authority to allocate 2.5 percent of the HEER funds to the institutions that the
Secretary determines have the greatest unmet needs. CARES Act § 18004(a)(3), 134 Stat. 567–
68. The Secretary is granted no discretionary authority over the allocation of the GEER or ESSER
Funds.
1
Ultimately, $2,953,230,000 was allocated for the GEER Fund and $13,229,265,000 was allocated
for the ESSER Fund. See U.S. Dep’t of Educ., Governor’s Emergency Education Relief Fund
State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/GEER-Fund-State-
Allocations-Table.pdf; U.S. Dep’t of Educ., Elementary and Secondary School Emergency Relief
Fund State Allocations Table 1 (2020), https://oese.ed.gov/files/2020/04/ESSER-Fund-State-
Allocations-Table.pdf.
4
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 17 of 59
A. Governor’s Emergency Education Relief (“GEER”) Fund
The CARES Act provisions governing the GEER Fund direct the Secretary to make
emergency relief grants from the Fund “to the Governor of each State with an approved
application.” CARES Act § 18002(a), 134 Stat. 564. The Act directs the Secretary to allocate the
“amount of each grant” using the following formula: (1) 60 percent based on the State’s “relative
population of individuals aged 5 through 24,” and (2) 40 percent based on the State’s “relative
number of children counted under section 1124(c)” of the ESEA. CARES Act § 18002(b), 134
Stat. 564–565. Section 1124(c)—part of Title I-A of the ESEA—defines “children to be counted”
as those from low-income families. See 20 U.S.C. § 6333(c).
Once the Secretary has made a grant from the GEER Fund to a Governor, the Governor
may use the GEER funds for any of three, broad purposes: (1) to “provide emergency support
through grants to [LEAs] that the [State Educational Agency or “SEA”] deems have been most
significantly impacted by coronavirus,” CARES Act § 18002(c)(1), 134 Stat. 565; (2) to “provide
emergency support through grants to institutions of higher education serving students within the
State that the Governor determines have been most significantly impacted by coronavirus,”
CARES Act § 18002(c)(2), 134 Stat. 565; and (3) to “provide support to any other institution of
higher education, [LEA], or education related entity within the State that the Governor deems
essential for carrying out emergency educational services to students.” CARES Act § 18003(c)(3),
134 Stat. 565. The Act contains no restrictions on which schools within eligible LEAs may receive
a subgrant of GEER funds under subsection 18002(c)(1). Instead, the Act provides broad
flexibility to LEAs to use such funds “to provide educational services to their students and to
support the on-going functionality of the [LEA].” See CARES Act §§ 18002(c)(1), (3), 134 Stat.
565.
5
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 18 of 59
B. Elementary and Secondary School Emergency Relief (“ESSER”) Fund
The CARES Act provisions governing the ESSER Fund direct the Secretary to make
emergency relief grants from the Fund to “each [SEA] with an approved application.” CARES
Act § 18003(a), 134 Stat. 565. Specifically, the statute directs that the “amount of each grant . . .
shall be allocated by the Secretary to each State in the same proportion as each State received
under [Title I-A] in the most recent fiscal year.” CARES Act § 18003(b), 134 Stat. 565. The
allocation of Title I-A funds to the States is determined by formulas specified in 20 U.S.C. §§
6632–6639, based primarily on the number of children from low-income families and foster
children in each State’s LEAs. At least 90 percent of ESSER grants received by SEAs must then
be subgranted to LEAs within the State. CARES Act § 18003(c), 134 Stat. 565. Similar to the
Secretary’s allocations to SEAs, SEAs are required to subgrant those funds to LEAs “in proportion
to the amount of funds such [LEAs] . . . received under [Title I-A] in the most recent fiscal year.”
Id. An LEA that did not participate in Title I-A in the previous fiscal year—generally speaking,
those with small numbers of low-income students—is not eligible for an ESSER subgrant.
However, the Act contains no restrictions on which schools within the eligible LEAs may receive
ESSER Funds. So long as an LEA receives Title I-A funds, the LEA may distribute ESSER funds
to both Title I and non-Title I schools within its district.
The CARES Act authorizes LEAs to use ESSER funds for a broad range of purposes,
including (1) any activities authorized under the ESEA and various other federal education
statutes; (2) coordination of preparedness and response efforts of LEAs with State, local, Tribal,
and territorial public health departments and other relevant agencies; (3) activities to address the
unique needs of low-income students and/or students with disabilities, English learners, racial and
ethnic minorities, students experiencing homelessness, and foster care youth; (4) planning and
coordination during long-term closures, including purchases of technology for online distance
6
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 19 of 59
learning; (5) mental health services and support; and (6) other purposes. See generally CARES
Act § 18003(d), 134 Stat. 565–566 (cataloging permissible purposes for use of ESSER funds).
C. Equitable Services for Private-School Students
Section 18005(a) of the CARES Act requires that LEAs receiving funds from either the
GEER Fund or the ESSER Fund allocate some of those funds to the provision of “equitable
services” to private-school students within their district. 134 Stat. 568. In particular, section
18005(a) unambiguously specifies that LEAs “shall provide equitable services in the same manner
as provided under section 1117 of the ESEA of 1965 to students and teachers in non-public
schools.” Id. (emphasis added). Section 1117, in turn, unambiguously provides that
“[e]xpenditures for educational services and other benefits to eligible private school children shall
be equal to the proportion of funds allocated to participating school attendance areas based on the
number of children from low-income families who attend private schools.” 20 U.S.C.
§ 6320(a)(4)(A)(i) (emphasis added); see also 20 U.S.C. § 6313(a)(2) (defining “school attendance
area” as the geographic area in which children are served by a Title I-A school). In other words,
the “manner” in which equitable services are provided under section 1117 of the ESEA is the
allocation of federal funds to private schools based on the number of low-income students in those
private schools.
By explicitly incorporating the terms of section 1117 into the CARES Act, Congress
unambiguously dictated that LEAs allocate CARES Act funds for equitable services to private-
school students in exactly the same way as they allocate Title I-A funds to private-school students.
Indeed, the ESEA contains a different provision—section 8501—specifying a range of equitable
services that SEAs must provide based on the total enrollment of private-school students. See
generally 20 U.S.C. §§ 7881(a)–(b). By selecting the formula specified in section 1117, rather
than section 8501, Congress unambiguously directed LEAs to provide equitable services under the
7
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 20 of 59
CARES Act to private-school students based on the number of low-income private-school students,
not the total number of private-school students.
As recently as October 2019, the Department’s own guidance regarding equitable services
to private-school students under section 1117 fully acknowledged that federal funding for
equitable services should be based on the number of low-income private-school students, not the
total number of private-school students. 2 That guidance, which is still still in effect, provides:
“The ESEA requires an LEA to determine an accurate count of children from low-income families
who attend public and private schools and reside in participating Title I public school attendance
areas in order to allocate the proportional share.” 3 Department guidance has reflected that same
formula for decades. 4
2
U.S. Dep’t of Educ., Title I, Part A of the Elementary and Secondary Education Act of 1965, as
Amended by the Every Student Succeeds Act: Providing Equitable Services to Eligible Private
School Children, Teachers, and Families – Updated Non-Regulatory Guidance 19 (Oct. 7, 2019)
https://www2.ed.gov/about/inits/ed/non-public-education/files/equitable-services-guidance-
100419.pdf.
3
Id.
4
See U.S. Dep’t of Educ., Non-Regulatory Guidance: Fiscal Changes and Equitable Services
Requirements under the Elementary and Secondary Education Act of 1965 (ESEA), as Amended
by the Every Student Succeeds Act (ESSA) 29 (Nov. 21, 2016) (“Using the proportion of children
from low-income families who attend private schools, the LEA would determine the amount of
funds available for equitable services based on that proportionate share of the LEA’s total Title I
allocation.”) (emphasis added),
https://www2.ed.gov/policy/elsec/leg/essa/essaguidance160477.pdf; U.S. Dep’t of Educ.,
Ensuring Equitable Services to Private School Children: A Title I Resource Tool Kit 55 (Sept.
2006) (“[The ESEA] requires that Title I expenditures for educational services and other benefits
to eligible private school students be equal to the proportion of funds allocated to participating
public school attendance areas based on the number of private school children from low-income
families.”) (emphasis added); https://www2.ed.gov/programs/titleiparta/ps/titleitoolkit.pdf; U.S.
Dep’t of Educ., Title I Services to Eligible Private School Children, Non-Regulatory Guidance 5
(Oct. 17, 2003) (“The amount of Title I funds allocated to each participating public school
attendance area is determined mainly on the basis of the total number of low-income students—
both public and private-- residing in each area.”) (emphasis added),
https://www2.ed.gov/programs/titleiparta/psguidance.doc.
8
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 21 of 59
II. THE APRIL 30, 2020 GUIDANCE DOCUMENT & PUBLIC RESPONSE
For over a month after the CARES Act’s passage, the Department stayed silent, and
Plaintiff LEAs made plans to follow the plain language of the Act, understanding that funds would
be allocated to services for private-school students following the formula set forth in section 1117.
But, on April 30, 2020, the Department issued a guidance document for the CARES Act
(“Guidance Document”). Without explanation and in direct contradiction of the Department’s
prior guidance concerning section 1117, the Guidance Document advised LEAs to calculate the
allocation of CARES Act (GEER and ESSER) funds for equitable services based on the total
number of students enrolled in private schools, as opposed to the number of low-income students
enrolled in private schools as specified in section 1117 of the ESEA.
In other words, the Guidance Document discarded the calculation formula specified in
section 1117 of the ESEA in favor of one resembling the calculation formula in section 8501 of
the ESEA. See 20 U.S.C. § 7881(a)–(b); supra 7. But, Congress incorporated section 1117, not
section 8501, of the ESEA into the CARES Act.
Unsurprisingly, the Department’s Guidance Document drew swift criticism from education
experts, state education officials, and members of Congress who passed the CARES Act, 5
including Republicans and Democrats. For example, members of several Committees in the House
and Senate wrote the Secretary urging her to “immediately revise [the Department’s] April 30
guidance . . . to come into compliance with the CARES Act and section 1117 of ESEA.” 6 The
5
The responses of state education officials and education experts are detailed and documented in
the Complaint. See Dkt. No. 1 at 30–35, ¶¶ 54–56(a)–(h).
6
Letter from Robert C. “Bobby” Scott, Chair, Comm. on Educ. & Labor, U.S. House of
Representatives, et al., to Betsy DeVos, Sec’y, U.S. Dep’t of Educ. (May 20, 2020),
https://edlabor.house.gov/imo/media/doc/2020-5-20%20Ltr%20to%20DeVos%20re%20
Equitable%20Services.pdf; The Congressional Research Service, too, recognized that the
Guidance Document was seemingly contrary to the plain text of the statute. Congressional
Research Service Report, CARES Act Education Stabilization Fund: Background and Analysis 24
(last updated Aug. 6, 2020), https://crsreports.congress.gov/product/pdf/R/R46378.
9
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 22 of 59
letter chastised the Department for attempting “to repurpose hundreds-of-millions of taxpayer
dollars intended for public school students to provide services for private school students, in
contravention of both the plain reading of the statute and the intent of Congress.” 7 The following
day, Senator Lamar Alexander of Tennessee, Chair of the Senate Education Committee, reportedly
confirmed his—and Congress’s—understanding “that the money should have been distributed in
the same way we distribute Title I money.” 8 Nevertheless, the Department declined to clarify,
revise, or rescind the Guidance Document.
III. THE DEPARTMENT’S RULE
Despite robust public outcry, on July 1, 2020, the Department dug in its heels and enshrined
the guidance in a binding interim final rule, CARES Act Programs; Equitable Services to Students
and Teachers in Non-Public Schools. See 85 Fed. Reg. 39,479 (July 1, 2020). The Rule became
effective upon its publication in the Federal Register, rather than after a public comment period.
See id. Corresponding federal regulations are collected at 34 C.F.R. § 76.665.
Rather than follow Congress’s explicit instruction in the CARES Act, 9 the Rule creates
two unlawful options that are binding on LEAs. Under one option, an LEA must follow the
formula outlined in the Guidance Document and calculate the share of CARES Act funds for the
benefit of private schools based on the total population of private-school students, instead of low-
income private-school students (“Option 1”). 85 Fed. Reg. 39,482. Or, under the other option, an
7
Id.
8
See Laura Meckler, Betsy DeVos defends decision to direct stimulus money to private schools,
WASH. POST, May 21, 2020, https://www.washingtonpost.com/local/education/betsy-devos-
stimulus-private-schools/2020/05/21/d790b926-9b99-11ea-ad09-8da7ec214672_story.html.
9
As they did with the Guidance Document, members of Congress wrote a letter to Secretary
DeVos demanding that she rescind the Rule. See Letter from Robert C. “Bobby” Scott, Chair,
Comm. on Educ. & Labor, U.S. House of Representatives, et al., to Betsy DeVos, Sec’y, U.S.
Dep’t of Educ. (July 31, 2020),
https://underwood.house.gov/sites/underwood.house.gov/files/IL%20Delegation%20Equitable%
20Services%20IFR%20Comment%20letter.pdf.
10
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 23 of 59
LEA can follow the formula set forth in section 1117 (calculating the amount based only on the
number of low-income students attending private schools), but must use its remaining CARES Act
funds to serve only its Title I-A schools, which are schools with at least 40% of their students from
low-income families or foster care, see 20 U.S.C. § 6314(a)(1)(A), and cannot use any funds for
its non-Title I schools (“Option 2”), see 85 Fed. Reg. 49,482. And, importantly, LEAs choosing
Option 2 are subjected to a “supplement, not supplant” requirement, which prohibits the LEA from
using CARES Act funds to cover expenditures that would normally be covered by state and local
funds. Id.; see also 20 U.S.C. § 6321(b)(1) (section 1118(b) of the ESEA, providing that “[a] State
educational agency or local educational agency shall use Federal funds . . . only to supplement the
funds that would, in the absence of such Federal funds, be made available from State and local
sources for the education of students participating in programs assisted under this part, and not to
supplant such funds”). But the CARES Act expressly does not limit the type of schools at which
the funds may be spent and contains no “supplement, not supplant” restriction on the use of the
funds.
The Rule thus presents LEAs—and by extension, the public-school students and families
they serve—with a lose-lose decision: either (1) retain discretion to spend CARES Act funds in all
public schools as Congress intended, but forfeit a much larger share of those funds to private
schools than Congress intended; or (2) allocate CARES Act funds to private schools according to
the formula set forth in the statute, but forfeit the discretion to determine how and where those
funds are spent in public schools. Regardless which option LEAs choose, the LEAs, their public
schools, public-school students, and students’ families are harmed.
IV. THE COMPLAINT
On July 22, 2020, Plaintiffs filed a Complaint seeking declaratory and injunctive relief.
Dkt. No. 1. On the same day they filed this motion, Plaintiffs filed a First Amended Complaint
11
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 24 of 59
(“Complaint”) adding new Plaintiffs to the lawsuit. Count One of the Complaint alleges that the
Rule constitutes ultra vires agency action in violation of the constitutional separation of powers.
Count Two alleges that the Rule violates the Spending Clause of the U.S. Constitution. Counts
Three and Four allege that the Rule exceeds the Secretary’s statutory authority and is not in
accordance with law, in violation of the Administrative Procedure Act (“APA”). Count Five
alleges that the Rule is arbitrary and capricious agency action in violation of the APA. And Count
Six alleges that the Department promulgated the Rule without complying with the APA’s notice-
and-comment requirements.
The Amended Complaint, now buttressed by Plaintiffs’ declarations, alleges that Plaintiffs
Broward County Public Schools (“BCPS”), DeKalb County School District (“DeKalb”), Denver
County School District No. 1, a/k/a Denver Public Schools (“DPS”), Pasadena Unified School
District (“Pasadena Unified”), and Stamford Public Schools (“SPS”) each will be directly injured
by the Rule, because each is an LEA within the meaning of the ESEA, and the Rule thus directly
restricts the amount and use of each LEA’s CARES Act funds. FAC ¶¶ 22-26. If these LEAs
choose Option 1, all of their public schools will receive fewer CARES Act funds on a per-pupil
basis. Id. If they choose Option 2, none of their non-Title I public schools will receive CARES
Act funds, and the CARES Act funds for their Title I public schools will be subject to an unlawful
“supplement, not supplant” restriction. Id.
The Complaint further alleges that each individual Plaintiff and his or her minor children
will be directly injured by the Rule because the children are enrolled in either (1) non-Title I public
schools in LEAs that administer both Title I and non-Title I schools (“mixed districts”), (2) Title I
public schools in LEAs administering mixed districts, or (3) Title I public schools in LEAs that
administer only Title I schools. FAC ¶¶ 19-21. Their children’s schools will lose resources under
the Rule regardless of which budgeting “option” their districts adopt. For children enrolled in non-
12
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 25 of 59
Title I public schools in mixed districts, Option 1 will reduce the amount of CARES Act funding
available to the schools, and Option 2 will eliminate the CARES Act funds to the schools entirely.
Id. ¶ 19. For children enrolled in Title I schools in mixed districts, Option 1 will reduce the CARES
Act funding available to the schools, and Option 2 will prohibit the schools from using CARES
Act funds for any services previously provided using state and local funding. Id. ¶ 20. For children
enrolled in Title I schools in Title I-only districts, the schools will be forced to accept additional
“supplement, not supplant” restrictions on the way they spend their CARES Act funds. Id. ¶ 21.
Finally, the Complaint alleges that Plaintiff NAACP’s national membership includes
numerous individuals who would be directly injured by the Rule, including many parents of minor
children attending Title I and non-Title I public schools in LEAs that either (1) stand to lose
substantially increased amounts of CARES Act funds to private-school students, or (2) will be
forced to accept significant restrictions on their use of CARES Act funds, if the Rule were
enforced. FAC ¶ 18a. These individuals include Teresa Haley and her minor grandchild, T.M.,
Kimberly Griffin and her minor child, C.G., Eugene Howard and his minor children, M.R. and
E.H., and Jabari Jones and his minor children, J.J. and J.J. Id. Public schools that will be harmed
by the Rule serve the vast majority of students of color in the United States, whereas private
schools that will benefit from the Rule are almost 70% white. Id. Because the Rule directly injures
its members, and disproportionately harms students of color and benefits primarily white students,
the NAACP has a clear and demonstrable interest in ensuring that federal education funds under
the CARES Act are distributed to their intended recipients. Id.
Likewise, Plaintiffs allege that, as a core part of its mission, the NAACP advocates for
racial equity in public education, and trains its units and members on proper implementation of the
ESEA and all relevant regulations. Id. ¶ 18b. Because the Rule disproportionately harms students
of color and causes considerable confusion in how LEAs may distribute federal funds, the NAACP
13
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 26 of 59
will need to expend a greater portion of its finite resources advocating for equity in CARES Act
spending and training its units and members on proper implementation of the Act. Id.
LEGAL STANDARD
The purpose of a preliminary injunction is “to preserve the relative positions of the parties
until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
“The decision whether to enter a preliminary injunction turns on four factors: (i) whether the
plaintiff is likely to succeed on the merits of the action; (ii) whether she will suffer irreparable
harm absent an injunction; (iii) whether the balance of the equities tips in her favor; and (iv)
whether an injunction is in the public interest.” J.D. v. Azar, 925 F.3d 1291, 1325 (D.C. Cir. 2019).
In this Circuit, courts evaluate the four preliminary injunction factors on a “sliding scale”—if a
“movant makes an unusually strong showing on one of the factors, then it does not necessarily
have to make as strong a showing on another factor.” Davis v. Pension Benefit Guar. Corp., 571
F.3d 1288, 1291–92 (D.C. Cir. 2009). 10
ARGUMENT
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR CLAIMS.
A. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that the Rule is
Ultra Vires in Violation of the Separation of Powers.
10
Though the sliding scale approach was called into question by Winter v. Natural Resources
Defense Council, Inc., 555 U.S. 7 (2008), this Court has since clarified that “[i]n the absence of a
D.C. Circuit decision overruling it, the sliding scale framework remains binding precedent that
this court must follow.” Confederated Tribes of Chehalis Reservation v. Mnuchin, No. 20-CV-
01002 (APM), 2020 WL 1984297, at *7 (D.D.C. Apr. 27, 2020). Accordingly, at minimum,
Plaintiffs “must make a ‘clear showing that four factors, taken together, warrant relief.’” League
of Women Voters of U.S. v. Newby, 838 F.3d 1, 6 (D.C. Cir. 2016) (quoting Pursuing Am.’s
Greatness v. FEC, 831 F.3d 500, 505 (D.C. Cir. 2016)). The sliding scale “allow[s] that a strong
showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius, 644
F.3d 388, 392 (D.C. Cir. 2011). “It is in this sense that all four factors ‘must be balanced against
each other.’” Davis, 571 F.3d at 1292 (quoting Davenport v. Int’l Bd. of Teamsters, 166 F.3d 356,
361 (D.C. Cir. 1999)). The weighing of the four factors is within this Court’s discretion. See id.
at 1291.
14
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 27 of 59
First, Plaintiffs are likely to prevail on their claim that the Rule is ultra vires and violates
the separation of powers. Defendants imposed conditions on federal spending without any
authority whatsoever to do so and in direct contradiction of the CARES Act. It is well-established
that such an ultra vires action is unlawful and void.
An agency action is ultra vires if it is “a patent violation of agency authority.” Fla. Health
Scis. Ctr., Inc. v. Sec’y of HHS, 830 F.3d 515, 522 (D.C. Cir. 2016) (internal quotation marks
omitted); see also Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 307 (D.C. Cir. 2014).
“A violation is ‘patent’ if it is ‘[o]bvious’ or ‘apparent.’” Fla. Health Scis. Ctr., 830 F.3d at 522
(quoting Black’s Law Dictionary (10th ed. 2014)). An agency acts ultra vires when it takes action
that contradicts a statute or makes interpretive rules without authority to do so. Aid Ass’n for
Lutherans v. U.S. Postal Serv., 321 F.3d 1166, 1172 (D.C. Cir. 2003).
The Secretary lacked statutory authority to promulgate the Rule. The CARES Act does
not give the Department any rulemaking authority, and the Department’s general rulemaking
power does not authorize it to impose special conditions on federal grants as it did in the Rule.
Even if Defendants did have rulemaking authority, they cannot lawfully promulgate a rule that
contradicts the Act. The Secretary’s effort to impose her own policy preferences regarding the
allocation of CARES Act funds between public and private schools exceeds her statutory authority
and therefore constitutes an unlawful ultra vires agency action in violation of the constitutional
separation of powers.
1. Congress delegated no rulemaking authority to the Secretary in the
CARES Act.
The CARES Act itself does not give the Secretary rulemaking authority. Without
rulemaking authority, the Rule is void. See City of Los Angeles v. Barr, 941 F.3d 931, 942 (9th
Cir. 2019); see also City of Philadelphia v. Att’y Gen. of U.S., 916 F.3d 276, 288 (3d Cir. 2019).
15
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 28 of 59
Courts “expect Congress to speak clearly if it wishes to assign to an agency decisions of
vast economic and political significance.” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014)
(internal quotation marks omitted). There is no such statement—clear or unclear—in the CARES
Act with respect to GEER and ESSER funds. Sections 18002 and 18003 direct the Secretary
simply to distribute the majority of the GEER and ESSER Funds to either the Governor of each
State or to each SEA in accordance with prescribed formulas—and nothing more. See CARES
Act §§ 18002(b) & 18003(b), 134 Stat. 564-565; supra 5-6.
If the absence of a clear delegation of discretionary authority with respect to those funds
left any doubt, the Act does grant the Secretary discretionary authority to allocate 2.5 percent of
the HEER funds to the institutions of higher education that the Secretary determines have the
greatest unmet needs. See CARES Act § 18004(a)(3), 134 Stat. 567–558. Plainly, Congress knew
how to delegate discretionary authority to the Secretary when it wanted to do so. Yet it did not do
so with respect to the GEER and ESSER Funds; there, the Secretary’s only authority is to give the
funds to the States in prescribed amounts. Once GEER and ESSER funds are distributed as
subgrants—i.e., from the States to LEAs—they are not part of a program “administered” by the
Department. See 20 U.S.C. § 1221e-3. By placing restrictions on LEAs’ use of GEER and ESSER
funds that are no longer in a program “administered” by the Department, the Secretary plainly
imposed conditions “that were not authorized by Congress.” See Aid Ass’n for Lutherans, 321
F.3d at 1172.
2. The Secretary does not have rulemaking authority under the general
rulemaking provisions.
With no rulemaking authority under the CARES Act, Defendants bypassed the Act and
instead cited two provisions of federal law outside the CARES Act—20 U.S.C. § 1221e-3 and §
3474—as conferring general rulemaking authority upon the Secretary with respect to the CARES
16
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 29 of 59
Act. See 85 Fed. Reg. 39,481 & 39,488 (July 1, 2020). Neither statute authorizes the Department’s
promulgation of the Rule.
The first statute, 20 U.S.C. § 1221e-3, confers general rulemaking authority on the
Secretary only to the extent necessary “to carry out functions otherwise vested in the Secretary by
law or by delegation of authority pursuant to law, and subject to limitations as may be otherwise
imposed by law.” Id. (emphasis added). But because the CARES Act unambiguously prescribes
the formula for LEAs to allocate the portion of their CARES Act funds reserved for the provision
of equitable services, the statute in no way “vest[s] in the Secretary” or “delegate[s]” to the
Secretary any “authority” whatsoever to prescribe the additional conditions or different formula in
the Rule.
Similarly, the second statute, 20 U.S.C. § 3474, only authorizes the Secretary to prescribe
rules and regulations to the extent “necessary or appropriate to administer and manage the
functions of the Secretary or the Department.” Id. Because the Secretary’s only delegated
authority under the CARES Act is to disburse the funds per the amounts prescribed in the Act, the
Department’s Rule was neither “necessary” nor “appropriate” to carrying out the functions of the
Secretary or the Department.
3. Defendants cannot substitute their policy preferences for Congress’s
decisions.
It does not matter that Defendants may disagree with Congress on policy. “[F]ederal
agencies may not ignore statutory mandates or prohibitions merely because of policy disagreement
with Congress.” In re Aiken County, 725 F.3d 255, 260 (D.C. Cir. 2013) (Kavanaugh, J.). In a
May 19, 2020 interview, the Secretary stated that the coronavirus pandemic “had brought into clear
focus that everyone has been impacted and we shouldn’t be thinking about students that are in
17
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 30 of 59
public schools versus private schools.” 11 But it is not for the Secretary to decide how Congress
appropriates monies from the Treasury. “Absent congressional authorization, [an agency] may
not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals
[without violating the separation of powers].” New York v. United States Dep’t of Health & Human
Servs., 414 F. Supp. 3d 475, 562 (S.D.N.Y. 2019) (alteration in original) (quoting San Francisco
v. Trump, 897 F.3d 1225, 1235 (9th Cir. 2018)).
Ultra vires rules trample separation-of-powers principles. The authority of the executive
branch, including executive agencies, to act “must stem either from an act of Congress or from the
Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952); see also
Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“[N]o provision in the Constitution . . .
authorizes the President to enact, to amend, or to repeal statutes.”). The Secretary had no such
authority to act in promulgating the Rule. Plaintiffs are therefore likely to succeed on the merits
of their claim that the Rule was ultra vires in violation of the constitutional separation of powers.
4. The Rule is not entitled to Chevron deference.
Even assuming that Defendants had rulemaking authority here—and they do not—the Rule
is an unlawful interpretation of an unambiguous statute. The Court reviews Defendants’
construction of the CARES Act under the standard set out in Chevron, U.S.A. v. Natural Resources
Defense Council, 467 U.S. 837 (1984). Applying Chevron, the Secretary plainly acted in excess
of statutory authority.
“When a court reviews an agency’s construction of the statute which it administers, it is
confronted with two questions. First, always, is the question whether Congress has directly spoken
to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for
11
Valerie Strauss, Betsy DeVos Doubles Down on Her Education Agenda During the Pandemic,
WASH. POST (May 29, 2020), https://www.washingtonpost.com/education/2020/05/29/betsy-
devos-doubles-down-her-education-agenda-during-pandemic/
18
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 31 of 59
the court, as well as the agency, must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43.
Congress directly spoke to the precise question of how LEAs are to allocate CARES Act
funds for equitable services. Section 18005 unambiguously instructs LEAs to “provide equitable
services in the same manner as provided under section 1117 of the ESEA.” CARES Act §18005,
134 Stat. 568 (emphasis added). Because “courts must presume that a legislature says in a statute
what it means and means in a statute what it says,” the Court must presume LEAs are to provide
equitable services to private-school students under the CARES Act on the same terms as prescribed
in section 1117 of the ESEA. See Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253–54 (1992).
That includes section 1117’s directive that expenditures for equitable services to private-school
students “shall be . . . based on the number of children from low-income families who attend
private schools.” 20 U.S.C. § 6320(a)(4)(A) (emphases added). See, e.g., Nat’l Fed’n of Indep.
Bus. v. Sebelius, 567 U.S. 519, 545–46 (2012) (“[The Affordable Care Act’s] command that the
penalty be ‘assessed and collected in the same manner’ as taxes is best read as referring to those
chapters [of the Internal Revenue Code] and giving the [Treasury] Secretary the same authority
and guidance with respect to the penalty.” (emphases added)); Lawrence Cty. v. Lead-Deadwood
Sch. Dist. No. 40-1, 469 U.S. 256, 271 (1985) (reading a state statute requiring that federal funds
be distributed “in the same manner as taxes are distributed” to mean that localities allocated tax
revenues and federal aid in proportionally identical ways) (emphasis added).
Because the plain text speaks directly to the question, the Rule is entitled to no deference,
and the Chevron inquiry ends here. When the words of a statute are unambiguous . . . ‘judicial
inquiry is complete.’” Germain, 503 U.S. at 254 ( (quoting Rubin v. United States, 449 U.S. 424,
430 (1981)). Congress spoke unambiguously here. It is no surprise, then, that both Republicans
19
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 32 of 59
and Democrats in Congress have said that the Department’s interpretation does not reflect the plain
text of the statute or Congressional intent. See supra 10-11.
Even if the Court were to conclude that section 18005 of the CARES Act is ambiguous—
and it is not—the Rule is an indefensible interpretation of the statute. If Congress had wanted
LEAs to use total private-school enrollment data when calculating the proportional share for
equitable services, it could easily have done so, by incorporating not section 1117 of the ESEA,
but rather section 8501 of that same law, which instructs LEAs to calculate expenditures for certain
services to private-school students in precisely that manner. See 20 U.S.C. § 7881(4)(A). “The
fact that [Congress] did not adopt this readily available and apparent alternative strongly supports”
the conclusion that it intended for LEAs to calculate expenditures of CARES Act funds for
equitable services based on low-income students as provided under section 1117. See Knight v.
Comm’r, 552 U.S. 181, 188 (2008); see also Azar v. Allina Health Servs., 139 S. Ct. 1804, 1813
(2019) (“Congress’s choice to include a cross-reference to one but not the other of the [statute’s]
neighboring exemptions strongly suggests it acted intentionally and purposefully in the disparate
decisions.”) (internal quotation marks omitted)).
Equally telling is the fact that the Rule conflicts with the Department’s own prior guidance
concerning section 1117 of the ESEA. See supra 8. October 2019 guidance for LEAs receiving
Title I funds states in no uncertain terms that the equitable-services calculation is based on “an
accurate count of children from low-income families who attend public and private schools and
reside in participating Title I public school attendance areas in order to allocate the proportional
share.” 12 What is more, Department guidance has reflected that same understanding of section
1117 for decades, under both Republican and Democratic administrations. 13 Thus the
12
See supra n.2.
13
See supra n.4.
20
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 33 of 59
Department’s Rule—which quite literally interprets “in the same manner” to mean “in a different
manner”—is not only indefensible in light of the CARES Act’s plain text, but also turns decades-
old guidance about how to provide equitable services under section 1117 on its head.
5. The Rule’s attempt to limit spending to only Title I schools and its
requirement that the funding “supplement, not supplant” current
expenditures are ultra vires.
Finally, the Rule’s attempts to limit spending of CARES Act funds to Title I schools and
to require that the funds “supplement, not supplant” current expenditures are in complete
contradiction to the CARES Act and are ultra vires.
The CARES Act contains no restrictions on which schools within LEAs may receive the
benefit of the funds. Instead, the Act provides broad flexibility to LEAs to use the funds “to
provide educational services to their students and to support the on-going functionality of the
[LEA].” See CARES Act §§ 18002(c)(1), (3), 134 Stat. 565. The Rule’s limitation on the use of
funds only at Title I schools finds no support in, and directly contradicts, the Act.
Likewise, the Secretary’s inclusion of the “supplement[,] not supplant” requirement, see
34 C.F.R. § 76.665(c)(3), appears nowhere in the text of the CARES Act. Indeed, as the
Department concedes in the Rule, that requirement is taken from “section 1118(b) of the ESEA,”
id.—a provision of the ESEA that the CARES Act nowhere mentions, much less incorporates.
“Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on
down the line.” NLRB. v. Sw. Gen., Inc., 137 S. Ct. 929, 938–39, (2017). But Congress did not
incorporate the entirety of Title I-A of the ESEA into the CARES Act. If Congress had intended
for LEAs to abide by the ESEA’s supplement-not-supplant provision, it would have incorporated
section 1118(b)(2) explicitly, just as it did section 1117. Cf. Morgan Stanley Cap. Grp. Inc. v.
Pub. Util. Dist. No. 1, 554 U.S. 527, 557 (2008) (“If Congress had intended to impose such detailed
constraints on the Commission’s authority . . . , it would have done so itself.”).
21
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 34 of 59
The Secretary may not rewrite the CARES Act to include either of these requirements
without exceeding her statutory authority.
B. Plaintiffs Are Likely to Succeed on the Merits of Their Claim that the Rule
Violates the Spending Clause of the United States Constitution.
Plaintiffs are also likely to succeed on the merits of their claim that the Rule violates the
Spending Clause of the United States Constitution. See U.S. Const. art. I, § 8. Under the Spending
Clause, conditions may be imposed on congressional funding measures only if they are
“unambiguous[]” and related “to the federal interest in particular . . . programs.” South Dakota v.
Dole, 483 U.S. 203, 207 (1987) (internal quotation marks omitted).
The Rule’s conditions on the use of GEER and ESSER funds violate the Spending Clause’s
unambiguous requirement for two reasons. First, as discussed supra 21-22, the Act does not
include any of the Rule’s conditions on spending. Far from being unambiguous, the Act fully
contradicts the imposition of these conditions. See Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 17 (1981); see also Kollaritsch v. Mich. State Univ. Bd. of Trs., 944 F.3d 613, 629 (6th
Cir. 2019) (“Congress ha[s] to identify any condition on its funding ‘unambiguously.’”). The
GEER and ESSER provisions of the CARES Act “in no way suggest[] that the grant of . . . funds
is ‘conditioned’” on using the funds according to the Rule’s alternative options for allocating
equitable services. See Pennhurst, 451 U.S. at 23. Congress, therefore, did not in “clear terms”—
or any terms—authorize imposition of the Rule’s conditions under the Spending Clause. See id.;
City of Chi. v. Barr, 961 F.3d 882, 907 (7th Cir. 2020) (“Congress must speak with a clear voice”
to impose conditions under the Spending Clause.).
Second, the Rule violates the Spending Clause’s prohibition on “post acceptance”
conditions. See Pennhurst, 451 U.S. at 25. “[L]egislation enacted pursuant to the spending power
is much in the nature of a contract.” Id. at 17. In this case, States applied for CARES Act funding
before the Secretary promulgated the Rule. Before the Rule took effect, States had already signed
22
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 35 of 59
binding certifications in which they acknowledged their legal obligations under the CARES Act,
including Section 18005. See Ferrandino Decl. ¶ 26, Ex. 1. By doing so, States entered into a
contract with the federal government. See Sebelius, 567 U.S. at 577 (quoting Barnes v. Gorman,
536 U.S. 181, 186 (2002)). As with any contract, grant recipients “cannot knowingly accept
conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.’” Arlington Cent.
Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296 (2006) (quoting Pennhurst, 451 U.S. at 17).
As such, the federal government cannot “surpris[e]” grant recipients with funding conditions after
the recipients have legally accepted the terms of the grant. Pennhurst, 451 U.S. at 25. But that is
exactly what the Rule’s equitable-services allocation requirements do.
C. Plaintiffs Are Likely to Succeed on the Merits of Their APA Claims.
Plaintiffs are equally likely to prevail on their claims that the Rule violates the APA.
Pursuant to the APA, the Court must “hold unlawful and set aside agency action, findings, and
conclusions” in a number of circumstances. Among those are when an agency action is “in excess
of statutory . . . authority,” is “not in accordance with law,” is “arbitrary [and] capricious,” or was
done “without observance of procedure required by law.” See 5 U.S.C. § 706(2). Each of these
circumstances applies to the Rule.
1. The Rule is ripe for review under the APA.
As a threshold matter, the Rule is ripe for review because it is a “final agency action” within
the meaning of the APA. See 5 U.S.C. § 704. The Rule is an interim final rule which took
immediate effect upon its publication in the Federal Register on July 1, 2020, and is therefore a
“final agency action.” See Career Coll. Ass’n v. Riley, 74 F.3d 1265, 1268 (D.C. Cir. 1996); see
also 85 Fed. Reg. 39,479 (“This interim final rule is effective July 1, 2020.”).
2. The Rule was an agency action in excess of statutory authority and not
in accordance with law.
23
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 36 of 59
Just as the rule is ultra vires, it is in excess of the Department’s statutory authority within
the meaning of the APA. The APA commands a court to “hold unlawful and set aside agency
action” that is found to be “in excess of statutory jurisdiction, authority, or limitations, or short of
statutory right,” or “not in accordance with law.” 5 U.S.C. § 706(2)(A), (C). Under section 706(2),
“an administrative agency’s power to promulgate legislative regulations is limited to the authority
delegated by Congress.” Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988). Without
rulemaking authority, regulations are invalid. Id. Even when an agency has rulemaking authority,
“[a]n agency’s general rulemaking authority does not mean that the specific rule the agency
promulgates is a valid exercise of that authority.” Colo. River Indian Tribes v. Nat’l Indian
Gaming Comm’n, 466 F.3d 134, 139 (D.C. Cir. 2006). Regulations that contradict statutory
authority violate the APA. See Holland v. Nat’l Min. Ass’n, 309 F.3d 808, 815 (D.C. Cir. 2002)
(noting APA’s “not in accordance with law” inquiry mirrors Chevron); Nat’l Min. Ass’n v.
Jackson, 768 F. Supp. 2d 34, 49 (D.D.C. 2014) (same with respect to APA’s “in excess of statutory
authority” inquiry).
As explained above, see supra 15-16, the CARES Act does not give the Secretary
rulemaking authority and the Rule, therefore, violates the APA. Further, as detailed supra 16-17,
the Secretary’s only purported source of delegated authority to promulgate the Rule was her
general rulemaking authority, which permits her to “make, promulgate, issue, rescind, and amend
rules and regulations . . . governing the applicable programs administered by” the Department. 20
U.S.C. § 1221e-3; see also 85 Fed. Reg. 39,481. The Secretary plainly acted in excess of that
authority by imposing conditions on CARES Act funds that are not authorized by Congress and
that conflict with the exceedingly narrow discretionary authority with respect to a different fund
afforded her under the CARES Act.
24
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 37 of 59
Moreover, the Rule is contrary to the express language of the statute as outlined supra 15-
21. Regulations that are directly contrary to congressional statutes violate the APA. See Doe, 1
v. FEC, 920 F.3d 866, 874 (D.D.C. 2019) (“It is hornbook law that an agency cannot grant itself
power via regulation that conflicts with plain statutory text.” (citing Orion Reserves Ltd. P’ship v.
Salazar, 553 F.3d 697, 703 (D.C. Cir. 2009) (“[R]egulation contrary to a statute is void.”)).
Accordingly, for the same reasons that Plaintiffs are likely to prevail on their ultra vires
claim, see supra 15-21, they are also likely to prevail on an APA claim that the Secretary acted in
excess of her statutory authority.
3. The Rule was arbitrary and capricious.
Under the APA, a reviewing court must hold unlawful any agency action that was
“arbitrary [and] capricious.” 5 U.S.C. § 706(2)(A). An agency’s rule is arbitrary and capricious
if, for example, the agency has “relied on factors which Congress has not intended it to consider,
entirely failed to consider an important aspect of the problem, offered an explanation for its
decision that runs counter to the evidence before the agency, or is so implausible that it could not
be ascribed to a difference in view or the product of agency expertise.” Motor Vehicle Mfrs. Ass’n
of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). The Rule is arbitrary and
capricious in numerous respects.
First, the Secretary ignored important aspects of the problem that she unilaterally granted
herself authority to address. See id.; Oceana, Inc. v. Ross, 363 F. Supp. 3d 67, 94 (D.D.C. 2019)
(“The APA requires agencies to examine all relevant data and consider all important aspects
of a problem.”)
To begin, the Secretary lacked any data to support the Rule. The Secretary offered no
evidence of an equal, or even proportional, need for CARES Act funds by private-school students.
See 85 Fed. Reg. 39,479. Unlike the statute as written, the Secretary made no attempt to consider,
25
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 38 of 59
much less determine, the relative costs and benefits of the Rule for public- and private-school
students where private schools educate only 1% of low-income students in America. See id. The
Secretary’s failure to provide any data at all in support of the Rule renders the Rule arbitrary and
capricious. See, e.g., Nat’l Treasury Emps. Union v. Horner, 854 F.2d 490, 492 (D.C. Cir. 1988)
(“Because OPM has presented no data to support its rationale . . . we also affirm . . . that the
decision was arbitrary and capricious.”); Resolute Forest Prods., Inc. v. U.S. Dep’t of Agric., 187
F. Supp. 3d 100, 123 (D.D.C. 2016) (“[W]here an agency . . . has not made a reasonable effort to
ensure that appropriate data was relied upon, its decision is arbitrary and capricious and should be
overturned.”).
Moreover, the Secretary ignored critical aspects of the problem. For example, the
Secretary failed to consider the obvious fact that public schools are funded through state and local
budgets, which have been decimated by the pandemic, as opposed to private schools, which are
funded by parents (with relatively secure employment), affluent donors, and endowments. Private
schools were also able to obtain funding under the Payroll Protection Program (“PPP”)—funds
unavailable to virtually any public schools. See CARES Act § 1102, 134 Stat. 286. Allowing
private schools to benefit from GEER and ESSER funding significantly above the amounts
Congress intended, as well as PPP funding, is unjustifiable double-dipping. The Secretary also
failed to consider that it was reasonable for Congress to direct CARES Act funds, which had to be
disbursed quickly in light of the pandemic, in the same way it usually directs funds—restricting
the allocation of such funds for equitable services based on those private-school students with
demonstrable need and risk.
Second, the Secretary “relied on factors which Congress has not intended [her] to
consider.” See State Farm, 463 U.S. at 43. For example, the Secretary criticized the application
of section 1117’s calculation because she claimed it “would disadvantage some students based
26
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 39 of 59
simply on where they live,” 85 Fed. Reg. 39,479. But, Congress did not intend the Secretary to
consider what she thought were the pros and cons of calculating equitable services under section
1117—the statute plainly required use of this calculation method regardless of the Secretary’s
personal opinions on the method. Meanwhile, the Secretary ignored Congress’s intention that
ESSER Funds be available to meet the needs of maintaining “staff,” “students,” “facilities,” and
“buildings” in an LEA, CARES Act § 18003(d)(1)–(12), 134 Stat. 565–567, instead forcing LEAs
to choose whether to maximize their CARES Act funds for public schools, but only use the funds
on Title I public schools, or else forfeit significant sums of their CARES Act funding to benefit
private schools. The Secretary also imposed a “supplement, not supplant” requirement that
appears nowhere in the CARES Act.
Third, the Secretary’s abrupt change in position from prior guidance resulted in an
“[u]nexplained inconsistency” that the Department has yet to acknowledge. See Nat’l Cable &
Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005); FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 516 (2009) (holding that when an agency changes policy, “a reasoned
explanation is needed for disregarding facts and circumstances that . . . were engendered by the
prior policy”). At all times before April 30, 2020, the Department instructed school districts to
“[e]nsure that [their] expenditures for equitable services are equal to the proportion of funds
generated by children from low-income families who reside in participating Title I public school
attendance areas and attend private schools.” See supra 10-11. The Department has never
adequately explained its about-face. See State Farm, 463 U.S. at 52 (requiring agencies to “offer
a rational connection between the facts found and the choices made,” including “justification for
rescinding the regulation”) (internal quotation marks omitted); Dep’t of Homeland Sec. v. Regents
of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (requiring an agency to provide “reasoned
analysis” before rescinding a “prior policy”).
27
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 40 of 59
Fourth, the Secretary failed to consider LEAs’ reliance on guidance published prior to April
30, 2020. “When an agency changes course,” the Supreme Court has cautioned, “it must be
cognizant that longstanding policies may have engendered serious reliance interests that must be
taken into account.” Regents of the Univ. of Cal., 140 S. Ct. at 1913 (internal quotation marks
omitted). LEAs have calculated funds for equitable services under section 1117 in the same way
for decades. The October 2019 Guidance, which is still in effect, reaffirmed that LEAs must
apportion funds for equitable services based on the number of children from low-income families
who attend private schools. See supra 8. LEAs budgeted for FY 2020–2021 with the
understanding that section 18005 directed them to provide equitable services “in the same manner
as” section 1117 of the ESEA. The Rule now imposes a radically different manner of apportioning
these funds that unleashes profound financial uncertainty. Where, as here, the prior policy
engendered “serious reliance interests,” an agency must provide “a more detailed justification than
what would suffice for a new policy created on a blank slate.” Fox Television, 566 U.S. at 515.
The Secretary has never offered any justification, let alone a detailed one.
4. The Rule was enacted without observance of procedure required by
law.
Under the APA, a reviewing court also must hold unlawful any agency action that was
enacted “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). The proper
procedure for rulemaking requires that all proposed rules be enacted pursuant to notice-and-
comment proceedings. Id. § 553(b) (“General notice of proposed rulemaking shall be published
in the Federal Register.”); id. § 553(c) (“After notice required by this section, the agency shall give
interested persons an opportunity to participate in the rule making through submission of written
data, views, or arguments.”). An agency is only exempt from this procedure if it “for good cause
finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued)
28
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 41 of 59
that” notice-and-comment was “impracticable, unnecessary, or contrary to the public interest.” Id.
§ 553(b)(3)(B).
The Secretary promulgated the Rule as an interim final rule without notice-and-comment
proceedings required by the APA. The Secretary lacked “good cause” to find notice-and-comment
rulemaking prohibitively impracticable, unnecessary, or contrary to the public interest. See 85
Fed. Reg. 39,483–84. The Court owes “no particular deference” to the Secretary’s finding that
she did have good cause, Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012), which is
reviewed de novo, Sorenson Commc’ns Inc. v. FCC., 755 F.3d 702, 706 (D.C. Cir. 2014). What
is more, the good cause exception “is to be narrowly construed and only reluctantly countenanced.”
Util. Solid Waste Activities Grp. v. EPA, 236 F.3d 749, 754 (D.C. Cir. 2001) (internal quotation
marks omitted). The Secretary’s invocation of the good-cause exception here fails.
(a) Promulgation of the Rule with notice-and-comment was neither
“impracticable” nor “unnecessary.”
An agency may invoke the impracticability exception in two circumstances, neither of
which is applicable here. First is “where congressional deadlines are very tight and where the
statute is particularly complicated.” Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1236
(D.C. Cir. 1994); see also Petry v. Block, 737 F.2d 1193, 1203 (D.C. Cir. 1984) (upholding a good-
cause determination where statute required the agency to promulgate “complex” regulations within
a matter of months). Second is where immediate rulemaking was necessary to avoid a threat to life
or property. See, e.g., Jifry v. FAA, 370 F.3d 1174, 1179 (D.C. Cir. 2004) (upholding expedited
pilot license regulations where immediate rulemaking was “necessary to prevent a possible
imminent hazard to aircraft, persons, and property within the United States”); Council of S.
Mountains, Inc. v. Donovan, 653 F.2d 573, 581 (D.C. Cir. 1981) (upholding agency’s fast-track
implementation of certain “life-saving” mining regulations).
29
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 42 of 59
It is true that the CARES Act is a multi-part law addressing an immediate and serious
public health situation. But, the provisions about equitable services funding are straightforward,
and neither circumstance justifying the lack of notice-and-comment procedures applies to the Rule.
First, Congress did not direct the Department of Education to promulgate any rules
concerning the implementation of section 18005, so the agency cannot claim that expedited
rulemaking was required to fulfill a congressional mandate.
Second, LEAs knew full well how to implement equitable services “in the same manner as
section 1117.” They have been doing it for decades and had already set their budgets based on
their long-established practices. There was no need for immediate rulemaking, or any rulemaking
whatsoever, to disrupt these practices. Congress provided LEAs with clear instructions on how to
allocate funding for equitable services in the text of section 18005, States had already signed
certifications stipulating to those statutory requirements, and LEAs were moving forward to
implement the statute’s straightforward direction. Far from being necessary to address
confusion—the Rule has created confusion and delay for school districts, to their detriment. 14
Nor can the Department claim public comment was “unnecessary.” 5 U.S.C. §
553(b)(3)(B). That prong of the good-cause inquiry is “confined to those situations in which the
administrative rule is a routine determination, insignificant in nature and impact, and
inconsequential to the industry and to the public.” Util. Solid Waste Activities Grp., 236 F.3d at
755. The Rule is none of those, and the Department’s explanation did not suggest otherwise.
(b) Promulgation of the Rule without notice and comment was not
in the “public interest.”
14
See supra n.9 at 2 (“However, the Department’s actions caused considerable confusion for states
and LEAs and slowed down their emergency response efforts. As of July 9, just four percent of
$16.1 billion in CARES Act funding that can be used for K-12 education has been spent, even
though such funding only covers a portion of unanticipated costs and lost revenues associated with
the pandemic.”).
30
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 43 of 59
Finally, an agency may invoke the “public interest” exception “only in the rare
circumstance when ordinary procedures—generally presumed to serve the public interest—would
in fact harm that interest.” Mack Trucks, 682 F.3d at 95. This exception applies when advance
notice of rulemaking would encourage regulated parties to engage in the very unlawful behaviors
that the “rule sought to prevent.” Util. Solid Waste Activities Grp., 236 F.3d at 755. There is no
reason why notice-and-comment would harm the public interest in proper or timely
implementation of equitable services. Indeed, the public interest in notice-and-comment
procedures is particularly acute because the Rule will impact almost every State and LEA in the
country and disrupt decades-old methods of calculating expenditures for equitable services. See
Am. Fed’n of Gov’t Emps., AFL-CIO v. Block, 655 F.2d 1153, 1156 (D.C. Cir. 1981) (“The more
expansive the regulatory reach of these rules, of course, the greater the necessity for public
comment.”). And, as explained above, the Rule creates confusion where there was none.
In sum, the Rule is in excess of the Department’s statutory authority, directly contradicts
the CARES Act, is arbitrary and capricious, and was implemented without observance of
procedure required by law. Plaintiffs are likely to succeed on the merits of their APA claims.
II. PLAINTIFFS WILL BE IRREPARABLY HARMED ABSENT INJUNCTIVE RELIEF.
Absent a preliminary injunction, Plaintiffs will suffer irreparable harm in the form of
increased risks to health and safety, lost education time, and unrecoverable economic losses.
Defendants have admitted that this issue must be resolved promptly. In issuing the Rule, the
Department stated that “[t]he CARES Act programs were enacted to address the immediate effects
of COVID-19,” and that “time is of the essence” because “of the current national emergency, its
disruption on education in both public and non-public schools, and the immediate need for
certainty regarding applicable requirements.” 85 Fed. Reg. 39,483-84. This preliminary
injunction seeks that certainty.
31
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 44 of 59
Given the urgency of the moment, Plaintiff LEAs are allocating CARES Act funds to their
public schools now to spend for the upcoming school year. Lucero Decl. ¶ 10; Blair Decl. ¶ 11-
12, 18; Lerma Decl. ¶ 8; Mailliard Decl. ¶ 10. Were it not for the Rule, Plaintiff LEAs would
simply calculate the equitable-services amount and allocate funds to schools in the same manner
as they always have. Lucero Decl. ¶ 14; Blair Decl. ¶ 18; Ferrandino Decl. ¶ 22. Those funds
would pay for crucial items such as Personal Protective Equipment (“PPE”) and desperately
needed sanitation services, a host of distance-learning technologies, critical faculty and support
personnel, and meals and nutritional support programs for public-school students. E.g., Lucero
Decl. ¶¶ 11, 16–18; McDonald Decl. ¶ 13; Ferrandino Decl. ¶ 25; Mailliard Decl. ¶ 12. Instead,
because of the Rule, LEAs either have to delay allocating funds until the legality of the Rule is
adjudicated, thereby delaying services past the start of the school year, or be forced to divert
hundreds of millions of dollars in CARES Act funds from public schools to provide equitable
services for private-school students. Lucero Decl. ¶ 10, 13-14, 16-18; Lerma Decl. ¶¶ 9-10;
McDonald Decl. ¶¶ 22-24; Gohl Decl. ¶ 13; Ferrandino Decl. ¶ 22-23; Mailliard Decl. ¶ 10; 15 see
also State of Michigan v. DeVos, 3:20-cv-04478, Dkt. No. 25 at 9 (N.D. Cal.) (noting plaintiffs
estimate they will have to divert over $150 million in CARES Act funds). In either case, the harm
is irreparable. E.g., Lucero Decl. ¶¶ 15-18; McDonald Decl. ¶¶ 22-24. Lost time is unrecoverable,
as are the services that would be funded but-for the unlawful diversion of those funds from public
schools to private-school students. See id.
15
Plaintiffs’ declarations highlight how every LEA/school district in the country receiving
CARES Act funds will be harmed by the Rule—along with every student in those school
districts. With or without a declaration, and based on the plain text of the Rule, the evidence is
clear that every district will have to either set aside a greater proportion of their CARES Act
funds for private school students than Congress intended, reducing the amount of funds they can
spend for public school students, or submit to illegal limitations on the expenditure of the funds.
32
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 45 of 59
This irreparable harm accrues directly to individual Plaintiffs and their minor children.
Each day that LEAs delay acting denies students the critical educational tools and programs they
need to learn—preventing schools from being able to “hit the road running,” either in person or
remotely, as they begin to go back in session. Lucero Decl. ¶ 17; McDonald Decl. ¶¶ 22-23; Gohl
Decl. ¶¶ 15-16; Ferrandino Decl. ¶ 24-25. If students’ school districts are forced to “choose” one
of the Rule’s two options, individual Plaintiffs and their minor children will face irreparable harm
regardless whether they attend a Title I school or non-Title I school, and regardless which option
their districts choose. Lucero Decl. ¶¶ 15-18; McDonald Decl. ¶¶ 22-24; Gohl Decl. ¶¶ 15-16;
Ferrandino Decl. ¶¶ 22-25; Mailliard Decl. ¶¶ 12-13; supra 12-13.
For individual Plaintiffs and their minor children, this means that their educational progress
will suffer. The high-quality education that Congress intended to ensure with CARES Act funds
will be replaced by underfunded remote learning (less hardware, software, remote curriculum
support, and teacher training), on the one hand or unsafe and under-resourced in-person learning,
on the other. Lucero Decl. ¶¶ 17-18; Blair Decl. ¶ 15; McDonald Decl. ¶ 15-16, 19-21; Gohl Decl.
¶¶ 15-16; Ferrandino Decl. ¶ 15; Mailliard Decl. ¶ 13. Every day that this harm continues is a
learning day lost for Plaintiffs’ minor children.
“[T]o characterize Plaintiffs’ claimed harm as merely ‘economic,’” therefore, would be “
terribly misguided.” Confederated Tribes of Chehalis Reservation v. Mnuchin, No. 20-cv-01002
(APM), 2020 WL 1984297, *8 (D.D.C. Apr. 27, 2020). The real effect of the Rule—at least until
its illegality can be adjudicated on the merits—is to preclude LEAs’ provision of essential health
and educational services for students in public schools, further imperiling the students’ physical
and mental health and safety, and delaying their educations. Lucero Decl. ¶¶ 16–17; McDonald
Decl. ¶ 15-16, 19-21. As detailed below, courts in this Circuit recognize such harms to health and
education as quintessentially “irreparable” in nature.
33
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 46 of 59
Even if Plaintiffs’ harms were merely “economic,” they are nevertheless irreparable
because the loss of federal funds for public schools is certain, imminent, and unrecoverable. See
Asante v. Azar, No. 20-CV-601 (TSC), 2020 WL 1930263, at *3 (D.D.C. Apr. 21, 2020) (citing
Texas Children’s Hosp. v. Burwell, 76 F. Supp. 3d 224, 242 (D.D.C. 2014)). As this Court recently
explained in granting a preliminary injunction prohibiting an agency from unlawfully distributing
CARES Act funds earmarked for Tribal governments, “[t]hese are not funds appropriated to carry
out secondary or residual government functions. These are monies that Congress appropriated on
an emergency basis to assist Tribal governments in providing core public services to battle a
pandemic that is ravaging the nation.” Chehalis Reservation, 2020 WL 1984297, at *8 (internal
citation omitted). The same is true of CARES Act funds for public schools.
A. Plaintiffs Will Suffer Irreparable Harm to Public-School Students’ Health
Absent an Injunction.
First, the Rule places the health and physical and mental well-being of public-school
students—and by extension, their entire families—in jeopardy. If school districts do not receive
the CARES Act funds that Congress appropriated for them, they cannot reopen public schools
safely by purchasing sufficient PPE, reducing class sizes, and/or hiring critical sanitation
personnel, school nurses, and other health professionals. Lucero Decl. ¶¶ 16–17; McDonald Decl.
¶ 15, 19; Maillard Decl. ¶ 11. Absent a preliminary injunction, then, the Department’s Rule thus
threatens the bodily health of public-school children and their families with the potential
contraction and/or transmission of the notoriously deadly coronavirus.
Such a showing is more than sufficient to establish irreparable harm. “Facing requests for
preliminary injunctive relief, courts often find a showing of irreparable harm where the movant’s
health is in imminent danger.” Al-Joudi v. Bush, 406 F. Supp. 2d 13, 20 (D.D.C. 2005) (citing
Wilson v. Grp. Hosp. & Med. Servs., Inc., 791 F. Supp. 309, 314 (D.D.C. 1992) (granting
preliminary injunction where cancer patient’s “health and future remain[ed] in serious doubt” and
34
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 47 of 59
insurance would not pay for life-saving treatment)). Indeed, this Court recently concluded that
“Plaintiff [inmates]’ risk of contracting COVID-19 and the resulting complications, including the
possibility of death, is the prototypical irreparable harm.” Banks v. Booth, No. 20-849 (CKK),
2020 WL 3303006, at *16 (D.D.C. June 18, 2020); see also Blackman v. District of Columbia, 185
F.R.D. 4, 6–7 (D.D.C. 1999) (referring to related case in which court found plaintiff had
established irreparable harm where defendant was not administering critical medication to a child).
Plaintiffs need not demonstrate a personal risk of contracting the coronavirus in order to make an
adequate showing of irreparable harm. See id. (rejecting defendants’ argument that plaintiffs failed
to demonstrate irreparable harm because they did not submit evidence of each individual plaintiff’s
personal risk of contracting COVID-19). In this case, the “‘risk to human life need not be a
certainty to justify expedition,’” particularly where the “‘very purpose of the governing Act is to
protect those lives.’” Agua Caliente Band of Chuilla Indians v. Mnuchin, No. 20-cv-01136 (APM),
2020 WL 325071, at *3 (D.D.C. June 15, 2020) (quoting Public Health Citizen Rsch. Grp. v.
Auchter, 702 F.2d 1160, 1157–58 & n.26 (D.C. Cir. 1983)).
B. Plaintiffs Will Suffer Irreparable Harm to Public-School Students’ Education
Absent an Injunction.
Second, the Rule jeopardizes the continuing education of public-school students, including
Plaintiffs, whether they are in non-Title I public schools in mixed districts, in Title I schools in
mixed districts, or in Title I-schools in Title I-only districts. See Lucero Decl. ¶¶ 15-18; Blair
Decl. ¶ 15; McDonald Decl. ¶¶ 18-24; Gohl Decl. ¶¶ 15-16; Ferrandino Decl. ¶¶ 22-25; Mailliard
Decl. ¶¶ 12-13. The Rule is already delaying what was supposed to be the immediate delivery of
funds to public schools, which means that, at best, public schools will have to begin the school
year without resources necessary to support remote learning. See Lucero Decl. ¶¶ 18, 22;
McDonald Decl. ¶¶ 22-23; Gohl Decl. ¶ 13-14; Mailliard Decl. ¶ 13. At worst, public schools will
not be able to deliver those resources to their students at all. See Blair Decl. ¶¶ 14-16; Lucero
35
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 48 of 59
Decl. ¶ 10, 13-14, 16-18; Gohl Decl. ¶ 18; Ferrandino Decl. ¶ 24-25; Mailliard Decl. ¶ 11. This
has significant consequences for our most vulnerable students. To take just a few examples:
School Districts have “been planning in an effort to provide quality teaching and learning since
March,” including by budgeting amounts to purchase particular software for remote learning.
Lucero Decl. ¶ 17. They also have been planning to hire key personnel, such as technology support
specialists, to train teachers on the use of remote-learning technology and enable teachers to
livestream to homes from the classroom. Id. If school districts cannot allocate the correct,
anticipated funds to public schools using the proportional calculation under section 1117, they
cannot afford such programs or personnel at all. Id. ¶¶ 15-16. Even if their use of those funds is
delayed but not prohibited entirely, the effect would be the same, because critical personnel would
not be available to hire in the middle of the year. Id. ¶ 18; see also McDonald Decl. ¶¶ 22-24.
Similarly, each dollar diverted to a private school from a public school results in direct,
irreparable harm to students. “For every $277 of CARES Act funds diverted from the DPS’s
public schools, whether Title I or non-Title I schools,” for example, “a public-school student loses
out on a desperately needed internet-connected device that would allow the student to participate
in remote learning while schools are closed due to the pandemic.” Ferrandino Decl. ¶ 32.
Likewise, “[f]or every $80,447 diverted from DPS’s public schools, whether Title I or non-Title I,
the public school, a public-school teacher risks losing his or her position and thus the ability to
educate students during the pandemic.” Id. ¶ 33.
This showing, too, is sufficient to demonstrate irreparable harm. See Lofton v. District of
Columbia., 7 F. Supp. 3d 117, 124 (D.D.C. 2013) (finding irreparable harm because every week a
student was deprived of services “is another week that [the student’s] educational progress is
delayed and, [the district] cannot retroactively cure the harm caused by those missed weeks of
required service”); see also id. (noting that students have “a finite amount of time to receive
36
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 49 of 59
educational services”); Blackman v. District of Columbia, 185 F.R.D. 4, 7–8 (D.D.C. 1999) (“[T]o
a young, growing person, time is critical. While a few months in the life of an adult may be
insignificant, at the rate at which a child develops and changes, especially one at the onset of
biological adolescence with or without special needs like those of our plaintiffs, a few months can
make a word of difference in the life of that child.”); Cox v. Brown, 498 F. Supp. 823, 828–29
(D.D.C. 1980) (finding that irreparable harm results when students “[lack] each day of their young
lives an appropriate education, one that is sensitive to their particular disabilities, commensurate
to their levels of understanding, and fulfilling of their immediate needs”).
C. Even if Plaintiffs’ Harms Were Merely “Economic,” Those Harms Are
Irreparable Because the Losses of CARES Act Funds Are Imminent, Certain,
and Unrecoverable.
Even assuming Plaintiffs’ harms are merely “economic” in nature—and they are not—such
harms are irreparable for at least three reasons. See Asante, 2020 WL 1930263, at *3 (holding that
“economic losses can be sufficient” to show irreparable harm “if [the losses] are unrecoverable
and threaten the existence of the business or, in the non-profit context, result in substantial
reduction of services” (citing Texas Children’s Hosp., 76 F. Supp. 3d at 242)); see also Nat’l Min.
Ass’n, 768 F. Supp. 2d at 53 (recognizing that if a movant “has shown that financial losses are
certain, imminent, and unrecoverable,” “the imposition of a preliminary injunction is appropriate
and necessary”).
First, Plaintiff LEAs’ losses of CARES Act funds are “unrecoverable.” Texas Children’s
Hosp., 76 F. Supp. 3d at 242. Funds are considered “unrecoverable” when no statutory provision
exists for recouping the funds. See id. Here, the Rule directly curtails the control Congress gave
LEAs over emergency funds to provide essential services to the neediest students. If not for the
Rule, Plaintiff LEAs would distribute the funds as both they and Congress intended—according
to section 1117 of the ESEA, which measures funds to be shared with private schools based on the
number of students from low-income families in those schools. There is no statutory provision
37
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 50 of 59
that would enable Plaintiffs to recoup these funds once disbursed under the Rule. See Texas
Children’s Hosp., 76 F. Supp. 3d at 244; California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018)
(uncompensable financial harm is irreparable harm). And, as described above, even if Plaintiffs
were somehow to recoup the funds from private schools, it would be too late to spend them on
items such as the hiring of critical support staff. See supra 35-36.
Second, Plaintiffs will suffer “certain” losses of CARES Act funds in the absence of a
preliminary injunction, see Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985), because
LEAs must allocate funds to private-school students before they can spend any CARES Act funds
on public schools. 34 C.F.R. § 76.665(b)(1); 85 Fed. Reg. 39,483 (“[A]n LEA cannot begin
services for public or non-public school students and teachers without consulting on determining
the amount of funds available for those services.”).
The Rule thus requires LEAs to make a pre-allocation decision between either (1)
allocating CARES Act funds based on total private-school enrollment, thereby forgoing millions
of dollars in CARES Act funds that would otherwise be allocated to their public schools, see 34
C.F.R. § 76.665(c)(1)(ii); or (2) allocating CARES Act funds based on low-income private-school
enrollment, thereby forgoing any CARES Act funds for their non-Title I public schools and
accepting a restrictive “supplement, not supplant” requirement that is found nowhere in the
CARES Act, see 34 C.F.R. § 76.665(c)(1)(i). Once they make that choice, LEAs may not use any
of the CARES Act funds allocated for private-school equitable services in their public schools,
must abide by any restrictions that the Rule imposes on CARES Act funds for their public schools,
and must expend CARES Act funds on equitable services requested by private schools.
In contrast, were the Court to issue a preliminary injunction preserving the status quo,
Plaintiff LEAs would instead allocate equitable services “in the same manner” as under section
1117 of the ESEA—just as Congress intended—and thereafter enjoy immediate access to
38
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 51 of 59
substantially more, or less restricted, CARES Act funds for their public schools. See supra 32.
Plaintiff LEAs’ economic losses of CARES Act funds are “certain” absent a preliminary
injunction.
Third, Plaintiffs will suffer an “imminent” loss of CARES Act funds absent a preliminary
injunction. For one, LEAs need CARES Act funds right now. Plaintiff LEAs are finalizing public-
school budgets for the 2020–2021 school year at this very moment. See supra 32-33. Without
preliminary injunctive relief, LEAs will be forced to budget for the upcoming school year based
on the illegal Rule, requiring them to cut programs, services, and staff from their budgets that
would have been affordable under the CARES Act’s plain text. See id.
LEA “Plaintiffs, moreover, are not for-profit entities facing the loss of profit; rather, they
are non-profits for whom lost funds would mean reducing . . . services to children.” Texas
Children’s Hosp., 76 F. Supp. 3d at 243. For example, the CARES Act funds that LEAs will lose
under the Rule could pay SPS’s costs of hiring Technical Support Specialists for each of its school
buildings to assist teachers, staff, and students with learning technology; technology teachers
districtwide; and a counselor and dean of students, positions that were eliminated due to budget
cuts that forced SPS to cut over $12.5 million in staff, services, and programming last year. Lucero
Decl. ¶ 17. Similarly, the CARES Act funds that LEAs stand to lose could pay for the following
costs in Pasadena Unified: providing nutritional programs to meet the COVID-19–related spike in
public-school children and families needing food; purchasing technology software and hardware
for distance learning; making essential physical changes to public-school facilities to stop the
spread of COVID-19; and paying for PPE necessary for increased cleaning. McDonald Decl. ¶ 13.
Finally, irreparable harm to Plaintiffs is both “certain” and “imminent” because of the
COVID-19 pandemic. Congress made a “policy judgment” that LEAs are in dire need of
emergency relief, so they are “presumed already to be suffering great harm.” See Agua Caliente
39
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 52 of 59
Band, , 2020 WL 3250701, at *3 (“Congress made a policy judgment that Tribal governments are
in dire need of emergency relief to aid in their public health efforts and imposed an incredibly
short time limit to distribute those dollars. Tribal governments therefore are presumed already to
be suffering great harm . . . . Considering the public health challenges presented by the COVID-
19 pandemic, the damage done by further delay cannot be fully cured by later remedial action,
rendering Plaintiffs’ harm irreparable.” (emphasis added) (citing Harris v. Bd. of Supervisors, L.A.
Cty., 366 F.3d 754, 766 (9th Cir. 2004); Kildare v. Saenz, 325 F.3d 1078, 1083 (9th Cir. 2003)));
see CARES Act § 18003(d)(12), 134 Stat. 566–567 (authorizing LEAs to expend ESSER funds
on any “activities that are necessary to maintain the operation of and continuity of services in
[LEAs] and continuing to employ existing staff of the [LEA]”). Plaintiffs’ showing is more than
sufficient to establish irreparable harm.
D. Plaintiffs Will Face Irreparable Administrative and Legal Burdens Absent an
Injunction.
Finally, Plaintiff LEAs will suffer irreparable harm in the form of administrative and legal
burdens absent a preliminary injunction. LEAs are already incurring—and, absent an injunction,
will continue to incur—substantial staffing and time burdens in choosing between the options the
Rule imposes, determining the impact of each option, and reviewing existing resources and needs
in light of those impacts. Lucero Decl. ¶ 19; McDonald Decl. ¶ 25; Blair Decl. ¶ 17; Gohl Decl. ¶
15-16. They will also incur severe burdens associated with using a new calculation for equitable
services—after decades using another formula. Lucero Decl. ¶ 20; Gohl Decl. ¶ 15-16; Mailliard
Decl. ¶¶ 14-16. This burden could not come at a worse time, as LEAs are already stretched beyond
administrative capacity dealing with the pandemic’s unprecedented challenges. Lucero Decl. ¶
19; McDonald Decl. ¶ 25.
Plaintiff LEAs will also incur these burdens while under the threat of legal liability.
Pursuant to the CARES Act, States applying for ESSER funds must certify that their LEAs will
40
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 53 of 59
comply with section 18005 and “any other applicable law or regulation.” Ferrandino Decl. ¶ 26,
Ex. 1. Because of the direct conflict between the statute and the Rule, LEAs must either violate
the statute or violate the Rule. See id. This Hobson’s choice is yet another irreparable harm
Plaintiffs face absent an injunction. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d
1046, 1057–58 (9th Cir. 2009) (finding irreparable harm where plaintiff had to choose between
two options, either of which would result in monetary penalties); Kimberly–Clark Corporation v.
District of Columbia, 286 F. Supp. 3d 128, 147 (D.D.C. 2017) (holding that plaintiff’s having to
face imminent decision whether to comply with regulation, potentially in violation of the First
Amendment, or expose itself to civil penalties, constituted irreparable harm).
III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST FAVOR PLAINTIFFS.
“[T]he third and fourth factors required for injunctive relief—balancing of the equities and
the public interest—merge where a plaintiff seeks preliminary relief against the government.”
Everglades Harvesting & Hauling, Inc. v. Scalia, 427 F. Supp. 3d 101, 116 (D.D.C. 2019) (citing
Nken v. Holder, 556 U.S. 418, 435 (2009)). Here, those factors weigh heavily in favor of Plaintiffs.
“The primary ‘purpose of a preliminary injunction is to preserve the object of the
controversy in its then existing condition—to preserve the status quo.’” Aamer v. Obama, 742 F.3d
1023, 1043 (D.C. Cir. 2014) (quoting Doeskin Prods., Inc. v. United Paper Co., 195 F.2d 356, 358
(7th Cir. 1952)). Here, issuance of a preliminary injunction accomplishes this purpose with no
harm to Defendants or to the public interest. Defendants “cannot suffer harm from an injunction
that merely ends an unlawful practice.” Open Cmtys. Alliance v. Carson, 286 F. Supp. 3d 148,
179 (D.D.C. 2017). If Plaintiffs prevail on the merits of their facial challenge, the effect will only
be to end an unlawful practice by the Department.
The public interest also favors protecting Plaintiff LEAs’ ability to serve vulnerable
students, including Plaintiff public-school children and their parents, so they can safely continue
41
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 54 of 59
to receive an adequate education during the pandemic, as Congress intended. Indeed, “an agency’s
compliance with a mandatory statutory regime is presumably always in the public interest.”
Protect Democracy Project, Inc. v. U.S. Dep’t of Def., 263 F. Supp. 3d 293, 301 (D.D.C. 2017);
see also Jacksonville Port Auth. v. Adams, 556 F.2d 52, 59 (D.C. Cir. 1977) (“[T]here is an
overriding public interest . . . in the general importance of an agency’s faithful adherence to its
statutory mandate.”). Should Plaintiffs prevail on the merits of their facial challenge to the Rule,
Plaintiffs will succeed only in enforcing Defendants’ faithful adherence to the statute.
Preserving the status quo would not harm Defendants, and refraining from enforcing the
Rule will cost Defendants nothing. Plaintiffs merely seek to keep in place the decades-old funding
formula provided under section 1117 of the ESEA and incorporated in the CARES Act—the same
formula that Defendants recognized as valid in their October 2019 guidance that continues in
effect. The requested preliminary injunction, which stays the Rule, generates no negative public
consequences; allowing the Rule to stand, on the other hand, imposes significant public harm.
Accordingly, both the balance of harms and the public interest favor a preliminary injunction.
IV. PLAINTIFFS ARE ENTITLED TO NATIONWIDE RELIEF.
Finally, Plaintiffs are entitled to a nationwide preliminary injunction. As detailed above,
Plaintiffs are likely to succeed on the merits of their facial challenge to the Rule. The D.C. Circuit
has held “that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the
ordinary result is that the rules are vacated—not that their application to the individual petitioners
is proscribed.’” Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir.
1998) (alteration in original) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir.
1989)); see also, e.g., Humane Soc’y of U.S. v. Zinke, 865 F.3d 585, 614 (D.C. Cir. 2017) (“A
common remedy when we find a rule is invalid is to vacate.”); Blue Water Navy Viet. Veterans
42
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 55 of 59
Ass’n, Inc. v. McDonald, 830 F.3d 570, 578 (D.C. Cir. 2016) (“[V]acatur is the ‘normal remedy.’”)
(quoting Allina Health Servs. v. Sebelius, 746 F.3d 1102, 1110 (D.C. Cir. 2014)).
“That a nationwide remedy is necessary to provide complete relief for promulgation of an
unlawful rule follows from the nature of the claim that the rule is facially unlawful.” District of
Columbia v. U.S. Dep’t of Agric., No. CV 20-119 (BAH), 2020 WL 1236657, at *34 (D.D.C. Mar.
13, 2020). That is because “when a plaintiff proves that a rule was unlawfully promulgated, halting
the rule’s application to the plaintiff may lessen the real-world impact of the unlawful rule on the
plaintiff[,] but does not fully redress ‘the violation established’—that is, the promulgation of an
unlawful rule.” Id.
The same rationale has equal force in the preliminary injunction context here. See,
e.g., Doe v. Rumsfeld, 341 F. Supp. 2d 1, 18–19 (D.D.C. 2004) (entering a permanent injunction,
after having issued a preliminary injunction, of the Department of Defense’s “involuntary anthrax
inoculation program” as to “all persons,” not just the plaintiffs); see also, e.g., Doe 1 v. Trump,
275 F. Supp. 3d 167, 217 (D.D.C. 2017) (entering preliminary injunction of policy banning
transgender individuals from the military in case filed by current and aspiring military service
members without discussing scope of relief), vacated on other grounds sub nom. Doe 2 v.
Shanahan, 755 F. App’x 19 (D.C. Cir. 2019); Planned Parenthood Fed’n of Am., Inc., v. Heckler,
712 F.2d 650, 651 (D.C. Cir. 1983) (affirming preliminary and then final injunction prohibiting
enforcement of federal regulations).
Further, “[t]he record in this case establishes that implementation of the [Rule] would have
‘nationwide impact’ and would cause injuries of ‘sufficient similarity to the plaintiff[s’]’ to other
states and individuals throughout the country.” Dep’t of Agric., 2020 WL 1236657, at *35
(quoting Cal. v. Azar, 911 F.3d 558, 584 (9th Cir. 2018)). Plaintiffs have presented evidence of
the Rule’s harm to LEAs and public-school children and their families across at least thirteen
43
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 56 of 59
States, see supra 31-41, and the NAACP’s members and their schoolchildren live in states across
the country, Goode Decl. ¶ 4. Almost every State and LEA in the country faces the same harms,
and the threatened loss of congressionally guaranteed emergency funding by the innumerable,
similarly situated districts and public-school children and families in other States merits
nationwide preliminary relief. See Dep’t of Agric., 2020 WL 1236657, at *31 (citing Trump v.
Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088–89 (2017)).
V. ALTERNATIVELY, PLAINTIFFS ARE ENTITLED TO EXPEDITED SUMMARY JUDGMENT.
For the reasons above, Plaintiffs are entitled to a preliminary injunction. If the Court
concludes, however, that Plaintiffs are not entitled to a preliminary injunction, Plaintiffs request
that the Court convert this motion to a motion for summary judgment, expedite Defendants’
briefing and the Court’s consideration of the motion, including submission of the administrative
record, and enter judgment for Plaintiffs. 16 At the very least, the Court should expedite briefing
and consideration of Counts 1–5, which do not depend on the administrative record.
Expedited consideration on the merits is consistent with the federal rules and with the
resolution of APA cases by this Court. Under the federal rules, “[b]efore or after beginning the
hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and
consolidate it with the hearing.” Fed. R. Civ. P. 65(a)(2). And “a party may file a motion for
summary judgment at any time until 30 days after the close of all discovery.” Id. 56(b). In an
APA case like this one, “summary judgment serves as the mechanism for deciding, as a matter of
law, whether the agency action is supported by the administrative record and otherwise consistent
16
Plaintiffs’ counsel conferred with Defendants’ counsel to propose a briefing schedule that would
allow the parties to file cross-motions for partial summary judgment on an expedited basis. Kravis
Decl. ¶ 2. Defendants’ counsel subsequently informed Plaintiffs’ counsel that they were unwilling
to agree to the proposal. Id. ¶ 3. Defendants’ counsel also requested a three-day extension of the
typical seven-day deadline to respond to Plaintiffs’ motion for preliminary injunction. Id. ¶ 4. As
a matter of courtesy, Plaintiffs agreed to that request as long as this did not jeopardize a hearing
the week of August 31 at the Court’s convenience. Id.
44
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 57 of 59
with the APA standard of review. . . In other words, the entire case . . . is a question of law and
the district court sits as an appellate tribunal.” Navajo Nation v. Azar, 302 F. Supp. 3d 429, 435
(D.D.C. 2018) (Friedrich, J.) (internal quotation marks and citations omitted). For that reason, “in
APA cases early summary judgment motions are often appropriate, as ‘[t]he entire case on review
is a question of law, and only a question of law.’” Am. Hosp. Ass’n v. Dep’t of Health & Hum.
Srvs., No. 18-2112 (JDB), 2018 WL 5777397, at *2 (D.D.C. Nov. 2, 2018) (quoting Marshall Cty.
Health Care Auth. v. Shalala, 988 F.2d 1221, 1226 (D.C. Cir. 1993)). This Court and others in
this Circuit can and routinely do resolve APA cases on expedited cross-motions for summary
judgment. See Navajo Nation v. Azar, 292 F. Supp. 3d 508, 513 (D.D.C. 2018) (Friedrich, J.); see
also, e.g., L.M.-M. v. Cuccinelli, No. 19-2676 (RDM), 2020 WL 985376, at *8 (D.D.C. Mar. 1,
2020); Am. Hosp. Ass’n, 2018 WL 5777397, at *2.
Expedited consideration is warranted here. For the reasons set forth above, the Rule is
preventing delivery of critical emergency relief to schools and students. As Congress recognized
when passing the CARES Act, public schools are facing unprecedented challenges due to COVID-
19, and every day that passes without clarity on the Rule is a day of education lost for our nation’s
most vulnerable students. What is more, Plaintiffs’ lawsuit raises legal issues that can be addressed
efficiently through expedited summary judgment. Most of Plaintiffs’ claims present questions of
law that do not require an administrative record, and the claims that do require an administrative
record are exceedingly narrow—limited to the Department’s reasons for promulgating the Rule.
Finally, Plaintiffs are entitled to judgment on the merits for the reasons explained above. If the
Court enters judgment on the merits for Plaintiffs, it should vacate the Rule.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court grant their motion
for preliminary injunctive relief or, in the alternative, enter judgment for Plaintiffs.
45
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 58 of 59
Dated: August 11, 2020 Respectfully submitted,
MUNGER, TOLLES & OLSON LLP
TAMERLIN J. GODLEY
(Admitted Pro Hac Vice)
JONATHAN KRAVIS
(D.C. Bar No. 973780)
ADELE M. EL-KHOURI
(D.C. Bar No. 1025090)
JESSICA REICH BARIL
(Admitted Pro Hac Vice)
DAVID P. THORESON
(Admitted Pro Hac Vice)
By: /s/ Adele M. El-Khouri
ADELE M. EL-KHOURI
TAMERLIN J. GODLEY
Tamerlin.Godley@mto.com
JESSICA REICH BARIL
Jessica.Baril@mto.com
DAVID P. THORESON
David.Thoreson@mto.com
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, Fiftieth Floor
Los Angeles, California, 90017
Telephone: (213) 683-9100
Facsimile: (213) 687-3702
JONATHAN KRAVIS
Jonathan.Kravis@mto.com
ADELE M. EL-KHOURI
Adele.El-Khouri@mto.com
MUNGER, TOLLES & OLSON LLP
1117 F. Street, N.W., Seventh Floor
Washington, D.C. 20004
Telephone: (202) 220-1100
Facsimile: (202) 220-2300
Counsel for All Plaintiffs
Additional Co-Counsel for All Plaintiffs Listed on
Next Page
46
Case 1:20-cv-01996-DLF Document 36-1 Filed 08/11/20 Page 59 of 59
Additional Co-Counsel for All Plaintiffs
BACARDI JACKSON WENDY LECKER
bacardi.jackson@splcenter.org WLecker@edlawcenter.org
(Admitted Pro Hac Vice) (Admitted Pro Hac Vice)
CHRISTINE BISCHOFF JESSICA LEVIN
christine.bischoff@splcenter.org JLevin@edlawcenter.org
(Admitted Pro Hac Vice) (Admitted Pro Hac Vice)
KATHERINE DUNN
katherine.dunn@splcenter.org EDUCATION LAW CENTER
(Admitted Pro Hac Vice) 60 Park Place, Suite 300
LINDSEY RUBINSTEIN Newark, New Jersey 07102
lindsey.rubinstein@splcenter.org Telephone: (973) 624-1815
(Admitted Pro Hac Vice) Facsimile: (973) 624-7339
SAM BOYD
sam.boyd@splcenter.org
(Admitted Pro Hac Vice)
MICHAEL TAFELSKI
michael.tafelski@splcenter.org
(Admitted Pro Hac Vice)
SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 315-0179
Facsimile: (334) 956-8481
47
File and source
- File
- 36-att1-memorandum-in-support.pdf
- Size
- 429,370 bytes
- SHA-256
- 6dcdd9602a3d72df71fe78e01cf547f2e31b83c693cb5b58f204cbef83653a19
- Original
- storage.courtlistener.com