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Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 1 of 30
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF NEW YORK
STATE OF NEW YORK, et al.,
Plaintiffs,
v. Case No. 1:25-cv-02990 (ER)(BCM)
U.S. DEPARTMENT OF EDUCATION, et
al.,
Defendants.
PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR IMMEDIATE INJUNCTIVE RELIEF PURSUANT TO RULE 65
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 2 of 30
TABLE OF CONTENTS
TABLE OF AUTHORITIES........................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
PROCEDURAL HISTORY ............................................................................................................ 2
A. ED’S PRIOR EXTENSION APPROVALS ...................................................................... 2
B. THE MARCH 28 RESCISSION LETTER ....................................................................... 4
C. THE COURT’S MAY 6 PI ORDER ................................................................................. 5
D. THE MAY 11 RESCISSION LETTER ............................................................................. 6
ARGUMENT .................................................................................................................................. 7
I. PLAINTIFFS ARE ENTITLED TO IMMEDIATE INJUNCTIVE RELIEF ...................... 7
A. Plaintiffs Are Likely to Succeed on the Merits ................................................................. 8
1. Defendants’ New Rescission Letter Constitutes Final Agency Action Subject
to Judicial Review Under the APA ............................................................................ 8
2. Defendants’ Latest Change in Position Violates the APA ........................................... 9
B. The Court’s Prior Rulings Against Defendants on the Irreparable Harm and
Equities/Public Interest Factors are Law of the Case ...................................................... 17
II. THE COURT SHOULD DIRECT DEFENDANTS TO PROCESS PLAINTIFFS’
PENDING PAYMENT REQUESTS WITHOUT DELAY ................................................ 18
III. THE COURT SHOULD NOT REQUIRE A BOND.......................................................... 19
CONCLUSION ............................................................................................................................. 20
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TABLE OF AUTHORITIES
Page(s)
Cases
Bauer v. DeVos,
325 F. Supp. 3d 74 (D.D.C. 2018) .............................................................................................7
Bennett v. Spear,
520 U.S. 154 (1997) ...................................................................................................................8
City & Cnty. of San Francisco v. Trump,
897 F.3d 1225 (9th Cir. 2018) .................................................................................................13
City of Providence v. Barr,
954 F.3d 23 (1st Cir. 2020) ......................................................................................................13
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal.,
591 U.S. 1 (2020) .................................................................................................................9, 16
Doctor’s Assocs., Inc. v. Stuart,
85 F.3d 975 (2d Cir. 1996).......................................................................................................19
Encino Motorcars, LLC v. Navarro,
579 U. S. 211 (2016) ............................................................................................................9, 16
FCC v. Fox Television Stations, Inc.,
556 U. S. 502 (2009) ................................................................................................................16
Food & Drug Admin. v. Wages and White Lion Investments, L.L.C.,
604 U.S. ___, 2025 WL 978101 (April 2, 2025) ................................................................. 9-10
Garland v. City of New York,
665 F. Supp. 3d 295 (E.D.N.Y. 2023) .....................................................................................17
Haywood v. Bureau of Immigration,
372 Fed. App'x 122 (2d Cir. 2010) ..........................................................................................14
In re Aiken Cnty.,
725 F.3d 255 (D.C. Cir. 2013) .................................................................................................13
Johnson v. Holder,
564 F.3d 95 (2d Cir. 2009).......................................................................................................17
ii
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Maine v. United States Dep’t of Agriculture,
No. 25-cv-00131, 2025 WL 1088946 (D. Me. Apr. 11, 2025) ................................................19
New York City Triathlon, LLC v. NYC Triathlon Club, Inc.,
704 F. Supp. 2d 305 (S.D.N.Y. 2010)......................................................................................19
New York v. U.S. Dep't of Homeland Sec.,
969 F.3d 42 (2d Cir. 2020).....................................................................................................7, 9
New York v. United States Dep't of Educ.,
477 F. Supp. 3d 279 (S.D.N.Y. 2020)........................................................................................7
Nnebe v. Daus,
510 F. Supp. 3d 179 (S.D.N.Y. 2020)........................................................................................7
Pharm. Soc’y of State of New York, Inc. v. New York Dep’t of Soc. Servs.,
50 F.3d 1168 (2d Cir. 1995).....................................................................................................19
Saget v. Trump,
375 F. Supp. 3d 280 (E.D.N.Y. 2019) .......................................................................................9
United States v. Quintieri,
306 F.3d 1217 (2d Cir. 2002)...................................................................................................17
Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7 (2008) .......................................................................................................................7
Federal Statutes
5 U.S.C. § 705 ..................................................................................................................................7
20 U.S.C. § 1225 ..............................................................................................................................3
American Rescue Plan Act of 2021, Pub. L. No. 117-2 (2021) ..........................................2, 11, 16
CARES Act, Pub. L. 116-136 (Mar. 27, 2020)..............................................................................16
Federal Regulations
2 C.F.R. § 200.344 .....................................................................................................................3, 11
iii
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Rules
Fed. R. Civ. P. 65 .......................................................................................................................7, 19
Miscellaneous Authorities
Senate Report 118-84, Committee on Appropriations (July 27, 2023) .....................................3, 15
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INTRODUCTION
Plaintiffs require the Court’s immediate intervention because the U.S. Department of
Education (“ED”) and Education Secretary Linda McMahon are once again seeking to block
Plaintiffs’ ability to liquidate their education stabilization (“ES”) funds by rescinding ED’s prior
extension approvals. Just five days after the Court enjoined Defendants’ attempt on March 28 to
block Plaintiffs’ access to their ES funds (ECF No. 77) (“PI Order”), Defendants notified Plaintiffs
by letter dated May 11, 2025, that they are “modifying” the period for Plaintiffs to liquidate their
ES funds “to terminate on May 24, 2025.” See May 11, 2025 “Dear Colleague” Letter from Hayley
B. Sanon (“May 11 Rescission Letter”) at 1.1
This time around, Defendants rehash the “end-of-the-pandemic” justification previously
rejected by the Court and advance a handful of new, equally specious “explanations,” including
that previously approved projects are nevertheless insufficiently tied to the purpose of ES funding,
ES funding is not being “put to the highest and best use,” the funds should be put to better
unspecified uses like deficit reduction, ED’s original extension approvals are suspect, and Plaintiffs
are requesting funds too quickly in the wake of the Court’s PI Order. Id. at 2-4.
Defendants’ new explanations fare no better than before; they are not remotely
“reasonable” and contravene Congress’s intent in enacting the appropriating legislation. And as
before, Defendants fail to account for Plaintiffs’ significant reliance interests in ED’s prior
extension approvals for continued access to these critical funds; they merely assert in conclusory
fashion that “no valid reliance interests exist” because “the extensions previously granted” could
1
The May 11 Rescission Letter is attached as Exhibit A to the Affirmation of Stephen C.
Thompson, dated May 14, 2025 (“Thompson Aff.”).
1
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be withdrawn by ED “in its discretion at any time,” id. at 4—the same argument the Court has
already soundly rejected.
Plaintiffs are highly likely to succeed in proving that Defendants’ second attempt to rescind
the extensions of Plaintiffs’ liquidation periods is as equally unlawful as their first attempt.
Moreover, given that the Court has already determined Plaintiffs will suffer irreparable harm if
they are blocked from accessing their awarded ES funds and that the balance of equities and public
interest weigh in Plaintiffs’ favor, those rulings are law of the case on this motion. The Court should
immediately issue an ex parte temporary restraining order (“TRO”) to maintain the status quo
pending an expedited hearing on whether to issue a preliminary injunction (“PI”) to enjoin
enforcement of the May 11 Rescission Letter pending resolution of this action.
PROCEDURAL HISTORY2
A. ED’S PRIOR EXTENSION APPROVALS
From 2020 to 2021, Congress enacted numerous major appropriations laws to, among other
things, provide ES funding to Plaintiffs to bolster the health (both physical and mental) and
education of students across the country during and after the COVID-19 pandemic. The primary
appropriations law at issue here is the American Rescue Plan Act of 2021 (“ARP”), Pub. L. No.
117-2 (2021), enacted in March 2021. Following these appropriations, Plaintiffs’ state education
agencies (“SEAs”) submitted grant applications for ES funding that included a description of the
types of projects for which the funds would be used, see May 6, 2025 Transcript (“Tr.”) at 26:1-
11, attached as Exhibit B to the Thompson Aff., resulting in awards to Plaintiffs totaling over $50
billion, Compl. ¶46 (chart). Under applicable regulations, including the “Tydings amendment,”
2
Plaintiffs incorporate by reference the prior declarations submitted in support of their prior
Motion for Preliminary Injunction (ECF Nos. 12-28) and cite to those declarations using the
citation format previously defined, see ECF No. 11-1 (Ex. A - Table of Supporting Declarations).
2
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Section 421(b) of the General Educational Provisions Act, codified at 20 U.S.C. §1225(b),
Plaintiffs had until January 28, 2025, to liquidate their ARP ES funds obligated under contracts
entered into on or prior to September 30, 2024. See 2 C.F.R. §200.344(c) (“The recipient must
liquidate all financial obligations incurred under the Federal award no later than 120 calendar days
after the conclusion of the period of performance.”).
Beginning in September 2023, and in response to Congress’s urging, ED solicited
extension requests from SEAs in accordance with ED’s discretionary authority to grant extensions
of the period within which Plaintiffs can draw down awarded funds (the “liquidation period”)
under 2 C.F.R. §200.344. See Compl. ¶¶41-43; Senate Report 118-84, Committee on
Appropriations 253 (July 27, 2023) (encouraging ED to extend liquidation periods through a
process imposing minimal burden on recipients), available at https://perma.cc/BGA9-XFBP. Each
Plaintiff submitted to ED a form (provided by ED) detailing unliquidated grant amounts already
obligated as of September 30, 2024; what subrecipients (i.e., particular schools or contractors) they
would fund; how the funds would be used; and the reason(s) for the extension request.3 ED granted
each State’s extension request, based on specific findings that the requesting State had submitted
sufficient justification and documentation to warrant granting the extension and setting the new
liquidation deadline to be March 2026,4 with only one exception.5 Accordingly, Plaintiffs
3
See, e.g., Coughlin-NY ¶37; Wright-MD ¶¶7–8; Rice-MI ¶¶9, 11; Bell-MA ¶¶7-8, 13-14; Seaton-
IL ¶¶13,15; Stewart-DC ¶¶6-8; Chasse Johndro-ME, ¶4; Rowe-PA ¶¶8, 15, 24-25; Wetherell-OR
¶¶8-9, 12; Ehling-NJ ¶10; Pierson-CA ¶¶6, 7, 10; Portner-HI ¶7; see also Perkins-Cohen-MD ¶¶4–
6.
4
See, e.g., Coughlin-NY ¶¶14, 20, 26, 36-38; Wright-MD ¶¶7–9; Rice-MI ¶¶11-13; Bell-MA ¶¶9,
15; Seaton-IL ¶¶14,16; Stewart-DC ¶¶6-8; Chasse Johndro-ME ¶5-6; Rowe-PA ¶¶8, 12;
Wetherell-OR ¶¶8-9; Ehling-NJ ¶¶11–14; Padilla-NM ¶¶6, 13, 19; Portner-HI ¶8; Marten-DE ¶11.
5
For California’s EANS award, ED extended the liquidation period only through December 2025.
Pierson-CA ¶6.
3
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understood that they had until March 2026 to draw down on their ES funding for amounts paid
under contracts entered into by September 30, 2024 (covering at least the 2024-2025 academic
year), and their SEAs and local education agencies (“LEAs”) relied on that understanding in
creating budgets, hiring staff, undertaking facility upgrade projects—some of which are only
partially completed—and planning programs and services for children and families.6
B. THE MARCH 28 RESCISSION LETTER
ED abruptly changed course at 5:03pm ET on March 28, 2025, when ED’s Office of
Communications and Outreach sent a mass email to all “Chief State School Officers”—including
each Plaintiff—attaching the March 28 Rescission Letter from Secretary McMahon. See Compl.,
Ex. A. The March 28 Rescission Letter stated that ED was “modifying the liquidation period to
end on March 28, 2025, at 5:00pm ET” instead of one year later per the extension approvals, based
on Defendants’ conclusion that ED’s prior extension approvals were suddenly “not justified.” Id.
at 1.
The rescission was not specific to any State’s particularized extension request or the terms
and conditions of their awards but instead was a categorical revocation of all previously granted
extensions. By way of reasoning, Secretary McMahon offered only that “[e]xtending deadlines for
COVID-related grants … years after the COVID pandemic [had already] ended is not consistent
with [ED’s] priorities and thus not a worthwhile exercise of its discretion.” Id. The March 28
Rescission Letter also advised that ED found “any reliance interests developed” by ES funding
6
See, e.g., Coughlin-NY ¶43; Slaga-AZ ¶¶10-15; Wright-MD ¶¶7–9; Rice-MI ¶21; Bell-MA ¶¶12,
18 (noting that Massachusetts was reassured as recently as February 12, 2025, that access to EANS
and ESSER funds would be available through March 28, 2026); Seaton-IL ¶¶4, 23-24; Stewart-
DC ¶¶6-8; 11-12; Rowe-PA ¶¶20, 22-28; Wetherell-OR ¶¶8-12, 21-22; Ehling-NJ ¶¶11–14;
Padilla-NM ¶¶6, 17, 21; Pierson-CA ¶¶6-12; Portner-HI ¶8; Marten-DE ¶12; see also Perkins-
Cohen-MD ¶¶5, 12–13.
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recipients based on those prior extension approvals to be “minimal” and “unreasonable,” stating
that, because the extension approvals were a matter of agency discretion, ES funding recipients
“could not rely on [ED] adhering to its original decision.” Id.
As of March 28, 2025, Plaintiffs collectively had just over $1 billion in unliquidated ES
funds remaining on their ESSER, HCY, and EANS grants that, until they received the March 28
Rescission Letter, they understood and believed they could access through March 2026.
C. THE COURT’S MAY 6 PI ORDER
In response to the March 28 Rescission Letter, Plaintiffs commenced this action asserting
that Defendants’ conduct was arbitrary and capricious (Count I) and contrary to law (Count II) in
violation of the APA. The day after filing the complaint, Plaintiffs moved for a preliminary
injunction. The Court granted Plaintiffs’ motion from the bench following oral argument on May
6, 2025, finding: (i) Plaintiffs demonstrated they have suffered, and will continue to suffer,
irreparable harm as a result of ED’s rescission that blocks them from accessing their funds through
timely payment requests, see May 6, 2025 Transcript (“Tr.”) at 45:46:5, attached as Exhibit B to
the Thompson Aff.; (ii) Plaintiffs have a “strong” likelihood of success on the merits of their two
APA claims, id. at 43:25-45:14, 48:12-13; and (iii) the balance of the equities and public interest
weigh in Plaintiffs’ favor, id. at 46:6-13. More specifically, the Court held Defendants’ conduct
violated the APA because “the reason proffered [in the March 28 Rescission Letter] was not a
reasonable explanation” and “Congress intended that these funds remain available” and that ED
“be liberal and flexible in making sure that these programs continued to be funded” without the
imposition of “unreasonable obstacles in the way of state agencies looking to continue to fund
those programs.” Id. at 44:21-22, 45:9-14.
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The Court preliminarily enjoined Defendants from enforcing the March 28 Rescission
Letter and required Defendants to provide 14 days’ notice if they seek again to modify Plaintiffs’
liquidation periods. See PI Order.
D. THE MAY 11 RESCISSION LETTER
On May 11, 2025—a mere five days after the PI Order—ED issued a “Dear Colleague”
letter to Plaintiffs’ SEAs announcing that ED “is modifying the period to liquidate obligations
under [ES funding] programs to terminate on May 24, 2025.” May 11 Rescission Letter at 1. In
addition to again asserting that the pandemic “concluded more than two years ago,” id. at 2,
Defendants proffered the following handful of patently insufficient and paper-thin purported
“explanations” for ED’s change in position:
• ES funds are being used for projects “less and less connected” to proper uses, despite
ED’s prior approval of the projects as part of the separate grant application and approval
process, id.;
• ES funds have not been “put to the highest and best use” as evidenced by a National
Assessment of Educational Progress study conducted in the first quarter of 2024—
several months prior to the September 30, 2024, deadline for states to enter into
contracts to incur obligations to be paid with ES funds, id. at 3;
• ES funds “would be more effectively devoted to other functions, including other
Department initiatives or reduction of the exploding federal deficit,” despite the
inability of ED to redirect to other uses any unliquidated ES funds, id.;
• ED now has “serious questions about the verification process” it used when it
previously approved Plaintiffs’ extension requests, id., contrary to Defendants’
counsel’s concession during argument that he had “no reason to believe” that ED’s prior
extension approvals did not involve a “careful review,” Tr. at 27:1-9; and
• The quickening pace of payment requests, especially “in the hours after the May 6
preliminary injunction” “justifies a more individualized review process,” May 11
Rescission Letter at 3.
As detailed below, none of these purported “justifications” passes muster under the APA to
satisfy the requirement under the change-in-position doctrine that Defendants offer a reasoned
explanation for their about-face on the prior extension approvals.
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ARGUMENT
I. PLAINTIFFS ARE ENTITLED TO IMMEDIATE INJUNCTIVE RELIEF
A temporary restraining order or preliminary injunction is warranted where the moving
party establishes that: (1) it is likely to succeed on the merits; (2) irreparable harm is likely in the
absence of preliminary relief; (3) the balance of equities tips in the movant’s favor; and (4) an
injunction is in the public interest. Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008);
Fed. R. Civ. P. 65(a), (b)(1). “Where, as here, the government is a party to the suit, the final two
factors merge.” New York v. U.S. Dep't of Homeland Sec., 969 F.3d 42, 58–59 (2d Cir. 2020); see
also Nnebe v. Daus, 510 F. Supp. 3d 179, 189 (S.D.N.Y. 2020), aff'd, No. 21-170-cv, 2022 WL
1220204 (2d Cir. Apr. 26, 2022). In addition, the APA authorizes courts “to postpone the effective
date of an agency action or to preserve status or rights pending conclusion of the review
proceedings.” 5 U.S.C. § 705. The standard for a stay under 5 U.S.C. § 705 is the same as the
standard for a TRO. See New York v. United States Dep't of Educ., 477 F. Supp. 3d 279, 294
(S.D.N.Y. 2020); Bauer v. DeVos, 325 F. Supp. 3d 74, 104-05 (D.D.C. 2018).
Plaintiffs easily satisfy the standard. Plaintiffs have a high likelihood of success on the
merits of their challenge to Defendants’ new rescission under the APA for the same reasons the
Court already determined they are likely to succeed on their APA challenges to the March 28
Rescission Letter. While Defendants have concocted a handful of new justifications for rescinding
ED’s prior extension approvals (in addition to rehashing their failed end-of-the-pandemic excuse),
they still offer no reasoned explanation, let alone an explanation that is consistent with Congress’
intent. Nor have they meaningfully considered or accounted for Plaintiffs’ substantial reliance
interests. With respect to the remaining irreparable harm and equities/public interest factors, no
new analysis is needed; the Court’s prior rulings in Plaintiffs’ favor are law of the case.
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A. Plaintiffs Are Likely to Succeed on the Merits
1. Defendants’ New Rescission Letter Constitutes Final Agency Action Subject
to Judicial Review Under the APA
Defendants’ latest attempt through the May 11 Rescission Letter to terminate Plaintiffs’
liquidation periods as of May 24, 2025, constitutes final agency action subject to review under the
APA just like Defendants’ prior attempt to terminate the liquidation periods under the March 28
Rescission Letter.
Final agency actions “mark the consummation of the agency’s decisionmaking process”
and are those “by which rights or obligations have been determined, or from which legal
consequences will flow.” Bennett v. Spear, 520 U.S. 154, 177-78 (1997) (internal citation omitted).
The Court previously ruled that the March 28 Rescission Letter was final agency action subject to
review under the APA because it was “a decision . . . to rescind all extensions” with “no
equivocation in that determination” that was “operable” without regard for the new process
established by ED for project-specific extensions. Tr. at 44:10-17. The same analysis applies with
the same result for the May 11 Rescission Letter.
Without equivocation, Defendants announce in the May 11 Rescission Letter that ED “is
modifying” Plaintiffs’ liquidation periods to “terminate on May 24, 2025.” May 11 Rescission
Letter at 1 (emphasis added). This decision is not subject to any further agency consideration;
indeed, confirming the finality of the decision, ED instructs Plaintiffs in the letter “to wind down
their existing obligations for work already completed.” Id. For the same reason that the Court ruled
the March 28 Rescission Letter was final agency action review under the APA, so too is the May
11 Rescission Letter.
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2. Defendants’ Latest Change in Position Violates the APA
The APA directs courts to set aside a final agency action that is not the product of “reasoned
decisionmaking” and is “arbitrary and capricious.” Dep’t of Homeland Sec. v. Regents of the Univ.
of Cal., 591 U.S. 1, 16 (2020). The Court’s review under this standard must ensure that the agency
has provided a genuine justification that supports its actions. Dep’t of Homeland Sec., 969 F.3d at
81. The arbitrary and capricious standard “is not limited to formal rules or official policies and
applies equally to practices implied from agency conduct.” Saget v. Trump, 375 F. Supp. 3d 280,
355 (E.D.N.Y. 2019) (collecting cases).
Where, as here, the agency changes its position, the agency must “provide a reasoned
explanation for the change,” “display awareness that [they are] changing position,” and consider
“serious reliance interests.” Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 221–22 (2016)
(quoting FCC v. Fox Television Stations, Inc., 556 U. S. 502, 515 (2009)). These requirements—
applicable under the Supreme Court’s “change-in-position doctrine”—are to ensure that an agency
does “not mislead regulated entities.” Food & Drug Admin. v. Wages and White Lion Investments,
L.L.C., 604 U.S. ___, 2025 WL 978101, at *13 (April 2, 2025). An agency changes its position
when it acts inconsistently with an earlier position, performs a reversal of its former views as to
the proper course, or disavows prior inconsistent agency action as no longer appropriate. Id. at
*14.
Here, Plaintiffs will likely prevail on their claim that Defendants’ newly announced blanket
rescission of ED’s prior extension approvals and determination that Plaintiffs’ liquidation periods
will terminate on May 24, 2025, is arbitrary and capricious (Complaint Count I) under the change-
in-position doctrine.
At the outset, Defendants clearly and intentionally changed ED’s position. Wages and
White Lion Investments, 2025 WL 978101 at *13. In the May 11 Rescission Letter, ED
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acknowledged that it is changing its mind about previously granted liquidation extensions. See
May 11 Rescission Letter at 3 (“The Department recognizes that it previously determined that an
extension was justified.”). Despite this clear change in position, Defendants fail to provide a single
reasoned explanation for their action among the numerous “justifications” laid out in the May 11
Rescission Letter, as detailed below.
Justification No. 1: The Pandemic is Over. Defendants rehash the same argument made
in the March 28 Recission Letter, stating that the extensions are no longer needed because “the
pandemic concluded more than two years ago.” Id. The Court should reject this justification as
plainly unreasonable for the same reasons as before. See Tr. at 33:7–21, 44:18–45:21.
Justification No. 2: Use of Funds Not Sufficiently Connected to Academic Services.
Defendants vaguely suggest that “States have increasingly tapped [ES funds] in ways that are less
and less connected to direct academic services to students and the ongoing educational harms
caused by COVID,” and provide a few alleged examples untethered to any particular Plaintiff or
project. May 11 Rescission Letter at 2–3. This reasoning is, at best, misplaced, because it conflates
initial approval of the grants with Plaintiffs’ separate requests that time to liquidate the awarded
funds be extended. As acknowledged by Defendants’ counsel during the May 6 argument, “[t]here
was an initial project approval” as part of the grant application process which included at least “a
broad[] indication of the type of work” for which the funds would be used, and in some instances
a more specific description of the projects. See Tr. at 26:1-11, 37:8–17. Plaintiffs’ requests to
extend the time to liquidate were subsequent to, and separate from, the initial grant applications
that ED had previously approved when first awarding the ES funds. And, accordingly, the only
issue before ED in connection with Plaintiffs’ extension requests was simply whether Plaintiffs
had sufficiently justified and documented the need for additional time to liquidate the funds for the
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already approved projects. The relevant regulation, 2 C.F.R. § 200.344, does not give ED the
authority to re-examine the underlying subject matter of a particular grant award—instead, it
provides ED only with discretion to approve an extension or not.
In any event, ED’s dismissive reference to several projects ignores the plain text of ARP
and the purpose of the ES funds. For example, ED complains that funds are being used for “Social-
Emotional Learning Hubs” and “an anti-oppression, anti-racism portal.” May 11 Rescission Letter
at 2. But Congress, in ARP, explicitly directed that ES funds be used, among other things, to
“ensure that [evidence-based] interventions respond to students’ academic, social, and emotional
needs” and “address the unique needs of … racial and ethnic minorities.” Pub. L. 117-2, tit. II,
sub. tit. A, §§ 2001(e)(1), 2001(e)(2)(F) (emphasis added); see also Seaton-IL ¶25(c) (describing
Illinois’s Social-Emotional Learning Hubs program). ED also criticizes the use of funds for “turf
field,” “window-replacement,” and “playground renovations” projects. May 11 Rescission Letter
at 2. But Congress also directed that ES funds be used for “[s]chool facility repairs and
improvements to enable operation of schools to reduce risk of virus transmission and exposure to
environmental health hazards, and to support student health needs.” Pub. L. 117-2, tit. II, sub. tit.
A, § 2001(e)(2)(O). Defendants cannot reasonably argue that providing safe outdoor recreation
opportunities, addressing critical school infrastructure like functioning windows, and otherwise
funding projects that meet the social and emotional needs of students do not meet the requirements
of ARP.
Justification No. 3: Funds Not Put to Their Highest and Best Use. Defendants point to
scores published by the National Assessment of Educational Progress (“NAEP”) showing fourth
and eighth grade students “saw a significant decrease in average reading scores” and “eighth
graders’ mathematics scores remained stagnant.” May 11 Rescission Letter at 3. From these scores,
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Defendants conclude that the ES funds “have not been put to their highest and best use.” Id. As an
initial matter, Defendants are again improperly attempting to second-guess Congress’ policy
choice to earmark ES funding for the purposes enumerated in the appropriating legislation. In any
event, Defendants’ reliance on the NAEP scores as an indication that the program funds awarded
under ARP have been ineffective to ameliorate the effects of the pandemic is completely
unreasonable.
The NAEP scores Defendants reference are the results from the NAEP 2024 mathematics
and reading assessments at grades 4 and 8, commonly known as “The Nation’s Report Card,”
which are published online at https://www.nationsreportcard.gov/. Notably, NAEP administered
the 2024 study in selected schools countrywide between January 29 and March 8, 2024. See
https://www.nysed.gov/state-assessment/national-assessment-educational-progress (noting when
NAEP study will be administered). That is more than six months before the September 30, 2024,
deadline Plaintiffs had to enter into contracts obligating ARP program funds, see May 11
Rescission Letter at 2, and long before the ARP-funded projects for the 2024-25 academic year
were implemented. An assessment of student performance conducted in the first quarter of 2024
cannot possibly indicate the effectiveness of projects implemented during the 2024-25 academic
year that starts in the Fall of 2024. Nor can the assessment take into consideration the effects of
contracts entered into between March and September 2024. Based purely on the timing of the
NAEP study, it is unreasonable for Defendants to draw any conclusions from the study results
about whether ES funding for ARP projects is being “put to their highest and best use.” Id. Rather,
if any relevant conclusion can be drawn from the results, it is that more, not less, intervention
through ES-funded projects is needed to help K-12 students catch up from lost instruction time.
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Justification No. 4: Funds Better Used for Other Initiatives. Defendants claim, without
evidence and without providing any examples, that ES funds “would be more effectively devoted
to other functions, including other Department initiatives or reduction of the exploding federal
deficit.” May 11 Rescission Letter at 3. This is not a reasonable justification for Defendants’
change in position because Defendants cannot second-guess Congress’s decision on how ES funds
may be used. ES funds are monies that have already been appropriated through COVID-19
legislation for the specific purposes enumerated by Congress for the exclusive benefit of state
education agencies and their local school districts and that have already been awarded to Plaintiffs
through ED’s grant approvals. ED has no proprietary agency interest in these funds, nor can ED
repurpose unliquidated funds for other agency uses; the funds may be used solely to reimburse
states for qualifying obligations incurred by states on or before September 30, 2024. Because
unliquidated ES funds cannot be used by ED for other agency initiatives, ED cannot modify
Plaintiffs’ liquidation periods based on its own perceived notion of how the funds can be better
used. See In re Aiken Cnty., 725 F.3d 255, 259 (D.C. Cir. 2013) (Kavanaugh, J.) (“[T]he President
may not decline to follow a statutory mandate or prohibition simply because of policy
objections.”); accord City & Cnty. of San Francisco v. Trump, 897 F.3d 1225, 1232 (9th Cir. 2018);
City of Providence v. Barr, 954 F.3d 23, 31 (1st Cir. 2020) (“When an executive agency administers
a federal statute, the agency’s power to act is ‘authoritatively prescribed by Congress.’” (quoting
City of Arlington v. FCC, 569 U.S. 290, 297 (2013))).
Justification No. 5: Alleged Problems with Original Extension Approvals. Defendants
now suggest that ED’s original approvals of the liquidation period extensions were somehow
suspect based solely on the purported “extreme length” of the extensions that were granted. May
11 Rescission Letter at 3. But Defendants, through their counsel, previously represented to this
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Court there was “no reason to believe” ED had failed to conduct a careful review when approving
Plaintiffs’ prior extension requests. Tr. at 27:7–10. Defendants are bound by this judicial
admission. See Haywood v. Bureau of Immigration, 372 Fed. App'x 122, 124 (2d Cir. 2010)
(holding an admission of fact made before, during, or even after a proceeding by an attorney acting
in his professional capacity binds his client as a judicial admission).
In any event, Defendants do not provide any basis to support their assertion that the
extensions granted here were “extreme” or give rise to a reasonable suspicion that ED acted
without conducting a careful review. Rather, the prior extension approvals confirm ED acted with
care to fulfill Congress’s desire that ED exercise its “broad flexibility to extend the period for
liquidating financial obligations” under ARP, Senate Report 118-84, Committee on Appropriations
253 (July 27, 2023), available at https://perma.cc/BGA9-XFBP, for a period of time that fell within
ED’s guidelines for seeking extensions.7 Furthermore, Defendants ignore the extensive narratives
and justifications that Plaintiffs provided to ED when seeking liquidation extensions, see, e.g.,
Coughlin-NY Ex. D (ECF No. 26-4), which ED then approved after specifically finding the
justifications and documentation to be “sufficient,” see, e.g., id., Ex. B (ECF No. 26-2).
Justification No. 6: “Accelerated” Draw Down Requests. Defendants claim that “an
individualized review process” is necessary because, following this Court’s grant of a preliminary
injunction, Plaintiffs “accelerated” the pace at which they were submitting draw-down requests.
May 11 Rescission Letter at 3. But Defendants studiously ignore the obvious explanation: a
backlog created by Defendants’ unlawful March 28 Rescission Letter coupled with Plaintiffs’
7
See ED’s February 23, 2024 FAQs for ARP Liquidation Extension Requests (noting SEAs may
request an extension “up to 14 months past the close of the liquidation period”), available at
https://www.ed.gov/sites/ed/files/2024/02/Technical-FAQs-for-ARP-HCY-Liquidation-
Extensions.pdf.
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justified fear that Defendants would once again attempt to cut off this critical funding stream.
Defendants do not allege any impropriety whatsoever in the draw down requests that Plaintiffs
have made thus far for purposes of conducting the required ministerial review, nor do they
challenge the adequacy of the information that Plaintiffs have provided with their payment requests
for such a review.
Furthermore, in addition to failing to provide any reasonable explanation for their change
in position, Defendants also fail to account for the substantial reliance interests of Plaintiffs’ SEAs
and their local districts in having a liquidation period that extends through March 2026. Instead,
Defendants assert that “no valid reliance interests exist” because Plaintiffs “knew that the
extensions previously granted by the Department were subject to withdrawal by the agency in its
discretion at any time.” May 11 Rescission Letter at 4. This is the same argument Defendants made
in opposing Plaintiffs’ motion to enjoin the March 28 Rescission Letter which the Court soundly
rejected. See Defendants’ Opposition (ECF No. 63) at 13 (“The March 28 Letter also considered
states’ reliance interests and determined that they were 'minimal' owing to the recency of the
extension approval and the Department’s authority to reconsider its position.”); Tr. at 46:3-5
(“There were substantial reliance rights that were established by the plaintiffs, which obviously
were interrupted.”). Their argument is no more persuasive now. As Plaintiffs established in support
of their prior successful motion, Plaintiffs’ SEAs and their local districts and nonpublic schools
have created budgets, hired staff, offered services to families and children, commenced
infrastructure improvement projects, and developed operating plans in reliance on the fact that the
liquidation period extends through March 2026.8 And as Plaintiffs previously pointed out, if it
8
Coughlin-NY ¶42-57; Slaga-AZ ¶¶10-15, 27; Wright-MD ¶¶9; Perkins-Cohen-MD ¶¶5, 12–15;
Rice-MI ¶21; Seaton-IL ¶¶23, 25; Stewart-DC ¶¶11-12; Rowe-PA ¶24; Wetherell-OR ¶¶21-22;
Ehling-NJ ¶¶18, 20; Padilla-NM ¶10; Pierson-CA ¶¶14-16; Marten-DE ¶14.
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were true that Plaintiffs could not rely on extensions “subject to withdrawal by the agency in its
discretion at any time,” May 11 Rescission Letter at 4, then a regulated entity could never have
reliance interests in any agency determination. Such a result cannot be squared with the change-
in-position doctrine or settled law requiring an agency to “take[] into account” the “serious reliance
interests” of regulated entities when changing positions. Regents, 591 U.S. at 30 (internal quotation
marks and citation omitted); see also Encino Motorcars, 579 U. S. at 221–22 (agency must
consider regulated entity’s “serious reliance interests”); Fox Television Stations, 556 U.S. at 515
(it “would be arbitrary or capricious to ignore” when a “prior policy has engendered serious
reliance interests”).
Finally, Plaintiffs will also likely succeed on their claim that Defendants’ May 11 rescission
is contrary to law (Complaint Count II) for the same reasons that the Court previously held their
March 28 rescission was contrary to law: “Congress intended that these funds remain available.
Congress intended that the Department of Education be liberal and flexible in making sure that
these programs continued to be funded, and that the Department of Education not impose
unreasonable obstacles in the way of state agencies looking to continue to fund those programs.”
Tr. at 45:9-14. The Court was persuaded by Plaintiffs’ argument that where Congress intended to
limit programs or appropriations based on the end of the pandemic, it did so directly by legislation.
See, e.g., ARP §9401 (“during the emergency period . . . and the 1-year period immediately
following the end of such emergency period”); id. §9811(hh) (“ends on the last day of the first
quarter that begins one year after the last day of the emergency period”); CARES Act, Pub. L. 116-
136, §1109(h) (Mar. 27, 2020) (“until the date on which the national emergency . . . expires”).
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B. The Court’s Prior Rulings Against Defendants on the Irreparable Harm and
Equities/Public Interest Factors are Law of the Case
The law of the case doctrine holds that “when a court has ruled on an issue, that decision
should generally be adhered to by that court in subsequent stages of the same case,’ unless ‘cogent’
and ‘compelling’ reasons militate otherwise.” Johnson v. Holder, 564 F.3d 95, 99-100 (2d Cir.
2009) (emphasis added) (quoting United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir.
2002));Garland v. City of New York, 665 F. Supp. 3d 295, 304 (E.D.N.Y. 2023) (same), aff'd sub
nom., Garland v. New York City Fire Dep't, No. 23-663, 2024 WL 445001 (2d Cir. Feb. 6, 2024),
cert. denied, 145 S. Ct. 266 (2024). A court may depart from the law of the case only for “cogent”
or “compelling” reasons, including an intervening change in law, availability of new evidence, or
“the need to correct a clear error or prevent manifest injustice.” Quintieri, 306 F.3d at 1230; see
also Johnson, 564 F.3d at 99–100.
There are no “cogent” or “compelling” reasons here for the Court to depart from the law
of the case on the irreparable harm suffered by Plaintiffs or the balance of equities and public
interest weighing in Plaintiffs’ favor, as determined by the Court on Plaintiffs’ prior PI motion. Tr.
at 45:14-16 (“As a result of the Department's actions, the plaintiffs have established irreparable
harm.”), Tr. at 46:6-7 (“the public interest and the balance of hardships here weigh clearly in favor
of the plaintiffs”). The Court’s prior rulings on these factors rest on facts that have not changed.
The Court found Plaintiffs suffer irreparable harm from the termination of their liquidation periods
based on “any number of declarations that have been submitted that talk about the disruption that
has been caused by the March 28 letter—programs have been halted, staff has been laid off,
infrastructure projects that were begun had been halted midstream, causing unusable locations
within schools.” Id. at 45:16-21. And the Court determined the balance of equities and public
interest tip in favor of Plaintiffs because their SEAs “have had to disrupt the provision of
17
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educational services to schoolchildren” and “have had to halt infrastructure projects midstream
because of the Department of Education's determination” Id. at 46:7-11. As before, Defendants
want to block Plaintiffs’ access to their ES funds by rescinding ED’s prior approvals and modifying
Plaintiffs’ liquidation periods to expire long before they are due to expire under the prior extension
approvals. That they are seeking to do so based on new and different “justifications” does not make
the harm Plaintiffs will incur any less irreparable than before or shift the balance of equities and
public interest in Defendants’ favor.
II. THE COURT SHOULD DIRECT DEFENDANTS TO PROCESS PLAINTIFFS’
PENDING PAYMENT REQUESTS WITHOUT DELAY
Under the PI Order, ED is required to process Plaintiffs’ pending payment requests for ES
funding under the ministerial review procedure applicable to requests submitted within Plaintiffs’
liquidation periods, and not review “specific projects at a closer level” as Defendants seek to do
under their alternative procedure that forces Plaintiffs to apply anew for project-specific
extensions. Tr. at 37:21-24; see also id. at 6:19-7:6. But ED is not processing Plaintiffs’ timely
submitted payment requests. For example, New York submitted two payment requests totaling
approximately $26.6 million for ARP programs prior to receiving the March 28 Rescission Letter,
but both of those requests remain outstanding. See Declaration of Christina Coughlin, sworn to on
May 14, 2025, at ¶3. Rather, by refusing to process Plaintiffs’ timely payment requests, Defendants
are effectively granting themselves the stay of the preliminary injunction that they requested and
that the Court denied at the May 6 hearing. Tr. at 49:15-16 (“I will not be staying the
implementation of the preliminary injunction.”).
Based on Defendants’ intransigence in the face of the PI Order requiring ED to process
outstanding payment requests as timely submitted, subject only to a cursory ministerial review, the
Court should direct Defendants to process Plaintiffs’ payment requests without delay and to submit
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a status report within one week listing for each Plaintiff the requests that remain outstanding, along
with the amount of each request, the date submitted, and the anticipated date it will be processed.
Cf. New York v. Trump, No. 25-CV-39, 2025 WL 1009025, at *5 (D.R.I. Apr. 4, 2025) (holding
that FEMA’s “manual review process impos[ing] an indefinite pause on the disbursement of federal
funds to the States” violated the court’s preliminary injunction order enjoining the agency from
impeding the disbursement of appropriated federal funds), reconsideration denied, No. 1:25-CV-
39, 2025 WL 1098966 (D.R.I. Apr. 14, 2025).
III. THE COURT SHOULD NOT REQUIRE A BOND
The Court is “‘vested with wide discretion’” in determining what amount of security, if
any, is appropriate under Federal Rule of Civil Procedure 65(c). Doctor’s Assocs., Inc. v. Stuart,
85 F.3d 975, 985 (2d Cir. 1996) (quoting Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961)).
The Court should exercise its discretion to dispense with requiring Plaintiffs to post a bond
for the same reasons the Court did not require Plaintiffs to post a bond when issuing the PI Order—
Plaintiffs have shown a “greater than usual” likelihood of success on the merits and this case
involves the “enforcement of public interest arising out of a comprehensive federal health and
welfare statute.” Tr. at 48:6-16; see also New York City Triathlon, LLC v. NYC Triathlon Club, Inc.,
704 F. Supp. 2d 305, 345 (S.D.N.Y. 2010); Maine v. United States Dep’t of Agriculture, No. 25-
cv-00131, 2025 WL 1088946, at *30 (D. Me. Apr. 11, 2025) (finding the need for a “substantial
bond” is minimized where a plaintiff’s “likelihood of success on the merits of the claims at issue
is extraordinarily high”); Pharm. Soc’y of State of New York, Inc. v. New York Dep’t of Soc. Servs.,
50 F.3d 1168, 1174 (2d Cir. 1995) (holding no bond required for case involving a comprehensive
federal health and welfare statute).
19
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 25 of 30
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court issue an ex parte
TRO immediately enjoining the enforcement of Defendants’ May 11 Rescission Letter, schedule
a PI hearing on an expedited basis, and grant such other relief as the Court deems necessary and
proper.
Dated: New York, New York
May 14, 2025
Respectfully submitted,
LETITIA JAMES KRISTIN K. MAYES
ATTORNEY GENERAL OF NEW YORK ATTORNEY GENERAL OF ARIZONA
By: /s Andrew Amer By: /s/ Alexa Salas
Andrew Amer Alexa Salas*
Special Counsel Assistant Attorney General
Molly Thomas-Jensen Lauren Watford*
Special Counsel Assistant Attorney General
Rabia Muqaddam 2005 North Central Avenue
Special Counsel for Federal Initiatives Phoenix, Arizona 85004
Stephen C. Thompson (602) 542-3333
Special Counsel Alexa.Salas@azag.gov
28 Liberty Street Lauren.Watford@azag.gov
New York, NY 10005 ACL@azag.gov
(212) 416-6127
andrew.amer@ag.ny.gov Counsel for the State of Arizona
Counsel for the State of New York
20
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 26 of 30
ROB BONTA KATHLEEN JENNINGS
ATTORNEY GENERAL OF CALIFORNIA ATTORNEY GENERAL OF THE STATE OF
DELAWARE
By: /s/ Maureen C. Onyeagbako
Maureen C. Onyeagbako* By: /s/ Vanessa L. Kassab
Supervising Deputy Attorney General Ian Liston
José Pablo Galán de la Cruz** Director of Impact Litigation
Deputy Attorney General Vanessa L. Kassab
Cheryl L. Feiner** Deputy Attorney General
Senior Assistant Attorney General Delaware Department of Justice
California Attorney General’s Office 820 N. French Street
1300 I Street, Ste. 125 Wilmington, DE 19801
P.O. Box 944255 (302) 683-8899
Sacramento, CA 94244-2550 vanessa.kassab@delaware.gov
Telephone: (916) 210-7324
Email: Maureen.Onyeagbako@doj.ca.gov Counsel for the State of Delaware
Pablo.Galan@doj.ca.gov
Cheryl.Feiner@doj.ca.gov
ANNE E. LOPEZ
Counsel for Plaintiff State of California ATTORNEY GENERAL FOR THE STATE OF
HAWAIʻI
BRIAN L. SCHWALB By: /s/ Kalikoʻonālani D. Fernandes
ATTORNEY GENERAL FOR THE DISTRICT OF David D. Day*
COLUMBIA Special Assistant to the Attorney General
Kalikoʻonālani D. Fernandes*
By: /s/ Andrew Mendrala Solicitor General
Andrew Mendrala** 425 Queen Street
Assistant Attorney General Honolulu, HI 96813
Public Advocacy Division (808) 586-1360
Office of the Attorney General for the kaliko.d.fernandes@hawaii.gov
District of Columbia
400 Sixth Street, NW Washington, DC Counsel for the State of Hawaiʻi
20001
(202) 724-9726
Andrew.Mendrala@dc.gov
Counsel for the District of Columbia
21
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 27 of 30
AARON M. FREY KWAME RAOUL
ATTORNEY GENERAL FOR THE STATE OF ATTORNEY GENERAL FOR THE STATE OF
MAINE ILLINOIS
By:/s/ Sarah A. Forster By: /s/ Elena S. Meth
Sarah A. Forster* Cara Hendrickson*
Assistant Attorney General Assistant Chief Deputy Attorney General
Office of the Attorney General Elena S. Meth*
6 State House Station Assistant Attorney General
Augusta, ME 04333-0006 Office of the Illinois Attorney General
Tel.: 207-626-8800 115 S. LaSalle St.
Fax: 207-287-3145 Chicago, IL 60603
Sarah.Forster@maine.gov (773) 835-0182
Cara.Hendrickson@ilag.gov
Counsel for the State of Maine Elena.Meth@ilag.gov
Counsel for the State of Illinois
ANTHONY G. BROWN
ATTORNEY GENERAL FOR THE STATE OF
MARYLAND ANDREA JOY CAMPBELL
ATTORNEY GENERAL OF MASSACHUSETTS
By: /s/ Keith M. Jamieson
Elliott Schoen* By: /s/ David C. Kravitz
Principal Counsel David C. Kravitz**
Assistant Attorney General State Solicitor
Alan J. Dunklow* Katherine Dirks
Deputy Principal Counsel Chief State Trial Counsel
Assistant Attorney General Office of the Attorney General
Maryland State Department of Education One Ashburton Place, 20th Floor
Keith M. Jamieson* Boston, MA 02108
Assistant Attorney General (617) 963-2427
Federal Accountability Unit david.kravitz@mass.gov
Office of the Attorney General
200 Saint Paul Place Counsel for the
Baltimore, Maryland 21202 Commonwealth of Massachusetts
(410) 576-6960
kjamieson@oag.state.md.us
Counsel for the State of Maryland
22
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 28 of 30
DANA NESSEL KEITH ELLISON
ATTORNEY GENERAL OF MICHIGAN ATTORNEY GENERAL FOR THE STATE OF
MINNESOTA
By: /s/ Neil Giovanatti By: /s/ Liz Kramer
Neil Giovanatti Liz Kramer*
BreAnna Listermann* Solicitor General
Assistant Attorneys General 445 Minnesota Street, Suite 1400
Michigan Department of Attorney General St. Paul, Minnesota, 55101
525 W. Ottawa (651) 757-1010
Lansing, MI 48909 Liz.Kramer@ag.state.mn.us
(517) 335-7603
GiovanattiN@michigan.gov Counsel for the State of Minnesota
ListermannB@michigan.gov
Counsel for the People of the State of AARON D. FORD
Michigan ATTORNEY GENERAL OF NEVADA
MATTHEW J. PLATKIN By: /s/ Heidi Parry Stern
ATTORNEY GENERAL OF NEW JERSEY Heidi Parry Stern (Bar. No. 8873)
Solicitor General
/s/ Lauren E. Van Driesen
Lauren E. Van Driesen Office of the Nevada Attorney General
Jessica L. Palmer 1 State of Nevada Way, Ste. 100
Justine Longa** Las Vegas, NV 89119
Deputy Attorneys General HStern@ag.nv.gov
Office of the Attorney General
124 Halsey Street, 5th Floor Counsel for the State of Nevada
Newark, NJ 07101
(609) 696-5279
Lauren.VanDriesen@law.njoag.gov
Jessica.Palmer@law.njoag.gov
Justine.Longa@law.njoag.gov RAÚL TORREZ
ATTORNEY GENERAL OF THE STATE OF NEW
Counsel for the State of New Jersey MEXICO
DAN RAYFIELD /s/ Anjana Samant
ATTORNEY GENERAL FOR THE STATE OF Anjana Samant**
OREGON Deputy Counsel
By: /s/ Sara Van Loh New Mexico Department of Justice
Sara Van Loh OSB #044398* 408 Galisteo Street
Senior Assistant Attorney General Santa Fe, NM 87501
100 SW Market Street asamant@nmdoj.gov
Portland, Oregon 97201 (505) 270-4332
Tel (971) 673-1880
Fax (971) 673-5000 Counsel for the State of New Mexico
Sara.VanLoh@doj.oregon.gov
Attorneys for the State of Oregon
23
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 29 of 30
JENNIFER C. SELBER
General Counsel
Michael J. Fischer
Executive Deputy General Counsel
By:/s/ Thomas P. Howell
Thomas P. Howell*
Deputy General Counsel
Governor’s Office of General Counsel
30 N. 3rd Street, Suite 200
Harrisburg, PA 17101
(717) 460-6786
thowell@pa.gov
Counsel for Governor Josh Shapiro,
Commonwealth of Pennsylvania
* Admitted Pro Hac Vice
** Pending Pro Hac Vice applications filed/to
be filed
24
Case 1:25-cv-02990-ER Document 85 Filed 05/14/25 Page 30 of 30
CERTIFICATION
I certify that, excluding the caption, table of contents, table of authorities, signature block,
and this certification, the foregoing Memorandum of Law contains 6,083 words, calculated using
Microsoft Word, which complies with Rule 7.1(c) of the Local Rules of the United States District
Courts for the Southern and Eastern Districts of New York.
Dated: New York, New York
May 14, 2025
LETITIA JAMES
Attorney General of the State of New York
By: /s Andrew Amer
Andrew Amer
Special Counsel
28 Liberty Street
New York, NY 10005
(212) 416-6127
andrew.amer@ag.ny.gov