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Home Source documents Memorandum of Law in Support of Motion, State of New York et al. v. U.S. Department of Education, No. 1:25-cv-02990 (S.D.N.Y.), Doc. 11 (April 11, 2025)

Memorandum of Law in Support of Motion, State of New York et al. v. U.S. Department of Education, No. 1:25-cv-02990 (S.D.N.Y.), Doc. 11 (April 11, 2025)

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  Case 1:25-cv-02990-ER      Document 11   Filed 04/11/25   Page 1 of 38


                   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 A PRELIMINARY INJUNCTION
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                                                    TABLE OF CONTENTS


TABLE OF AUTHORITIES ............................................................................................. ii
INTRODUCTION ............................................................................................................. 1
BACKGROUND ............................................................................................................... 5
                     A.         Congress Appropriated Funds to Mitigate the Immediate and
                                Long-Term Devastating Impacts of the Pandemic on K-
                                through-12 Students ....................................................................... 5
                     B.         ED Granted Extensions Permitting Plaintiffs to Timely Seek
                                Reimbursement Through March 2026 and Then Abruptly
                                Rescinded the Extensions and Declared Plaintiffs’
                                Liquidation Periods to Have Already Expired ............................... 7
                     C.         Plaintiffs Have Suffered and Will Continue to Suffer
                                Substantial Harm From Defendants’ Rescission of ED’s
                                Prior Extension Approvals ........................................................... 10
ARGUMENT ................................................................................................................... 12
          I.         THIS COURT HAS JURISDICTION OVER THE STATES’
                     CLAIMS .................................................................................................. 12
                     A.         The Tucker Act Does Not Apply ................................................. 12
                     B.         Plaintiffs Have Standing .............................................................. 16
          II.        THE   COURT    SHOULD    PRELIMINARILY   ENJOIN
                     DEFENDANTS    FROM    RESCINDING   ED’S   PRIOR
                     EXTENSIONS APPROVALS AND DECLARING STATES’
                     LIQUIDATION PERIODS TO HAVE ALREADY EXPIRED ............. 18
                     A.         Plaintiffs Have a Strong Likelihood of Success on the Merits
                                ...................................................................................................... 19
                     B.         Plaintiffs Will Suffer Irreparable Harm Absent a PI ................... 25
                     C.         The Public Interest and Balance of Equities Strongly Favor
                                Granting a PI ................................................................................ 27
CONCLUSION ................................................................................................................ 28




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                                                  TABLE OF AUTHORITIES

Cases
Am. Ass’n of Colleges for Teacher Educ. v. McMahon, No. 1:25--00702 2025 WL
  833917 (D. Md. Mar. 17, 2025) ................................................................................................ 25
Bauer v. DeVos, 325 F. Supp. 3d 74 (D.D.C. 2018) ..................................................................... 19
Bennett v. Spear, 520 U.S. 154 (1997) ......................................................................................... 19
Bowen v. Massachusetts, 487 U.S. 879 (1988) ...................................................................... passim
Carson v. American Brands, Inc., 450 U.S. 79 (1981) ................................................................. 25
Chevron Corp. v. Donziger, 833 F.3d 74 (2d Cir. 2016) .............................................................. 17
City & County of San Francisco v. USCIS, 408 F. Supp. 3d 1057 (N.D. Cal. 2019) ................... 25
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) ..................................................................... 16
Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017)........................................ 26
Deferio v. City of Syracuse, 193 F. Supp. 3d 119 (N.D.N.Y. 2016) ............................................. 28
Dep’t of Com. v. New York, 588 U.S. 752 (2019)................................................................... 20, 21
Dep’t of Educ. v. California, 604 U.S. ___, 2025 WL 1008354 (April 4, 2025) ................... 14, 15
Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S. 1 (2020) .................... 20, 21, 24
Elias Bochner, 287 7th Ave. Realty LLC v. City of New York, 118 F.4th 505 (2d Cir.
  2024) ......................................................................................................................................... 18
Encino Motorcars, LLC v. Navarro, 579 U. S. 211 (2016) .................................................... 21, 24
FCC v.Fox Television Stations, Inc., 556 U. S. 502 (2009) ................................................... 21, 24
Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367 (2024) .................................. 18
Food & Drug Admin. v. Wages and White Lion Investments, L.L.C., 604 U.S. ___,
  2025 WL 978101 (April 2, 2025) ............................................................................................. 21
Ivy Sports Med., LLC v. Burwell, 767 F.3d 81 (D.C. Cir. 2014) .................................................. 15
Kansas v. United States, 249 F.3d 1213 (10th Cir. 2001) ............................................................ 26
League of Women Voters of United States v. Newby, 838 F.3d 1 (D.C. Cir. 2016) ..................... 27
Linea Area Nacional de Chile S.A. v. Meissner, 65 F.3d 1034 (2d Cir. 1995) ......................... 3, 12
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................................................. 16, 17
Massachusetts v. Sec’y of Health & Hum. Servs., 816 F.2d 796 (1st Cir. 1987).......................... 15
Md. Dep’t of Hum. Resources v. Dep’t of Health & Hum. Services, 763 F.2d 1441
 (D.C. Cir. 1985) ........................................................................................................................ 13
Mich. v. DeVos, 481 F. Supp. 3d 984 (N.D. Cal. 2020) ............................................................... 26
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S.
 29 (1983) ................................................................................................................................... 21

                                                                         ii
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New York v. Dep’t of Homeland Sec., 969 F.3d 42 (2d Cir. 2020)............................................... 20
New York v. Trump, No. 25-1236, 2025 WL 914788 (1st Cir. Mar. 26, 2025) ............................ 20
New York v. U.S. Dep’t of Commerce, 315 F. Supp. 3d 766 (S.D.N.Y. 2018) ............................. 16
New York v. U.S. Dep’t of Educ., 477 F. Supp. 3d 279 (S.D.N.Y. 2020) ..................................... 19
New York v. U.S. Dep’t of Homeland Sec., 969 F.3d 42 (2d Cir. 2020) ....................................... 18
Nken v. Holder, 556 U.S. 418 (2009) ........................................................................................... 27
Nnebe v. Daus, 510 F. Supp. 3d 179 (S.D.N.Y. 2020) ................................................................. 19
Nnebe v. Daus, No. 21-170-CV, 2022 WL 1220204 (2d Cir. Apr. 26, 2022) .............................. 19
Packard Elevator v. ICC, 782 F. 2d 112 (8th Cir. 1986) .............................................................. 25
Planned Parenthood of N.Y.C. v. U.S. Dep’t of Health & Hum. Servs., 337 F. Supp.
  3d 308 (S.D.N.Y. 2018) ............................................................................................................ 27
R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015) ................................................................ 28
Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) .................................................................. 28
Rothstein v. UBS AG, 708 F.3d 82 (2d Cir. 2013) ......................................................................... 17
Russello v. United States, 464 U.S. 16 (1983) .............................................................................. 25
Saget v. Trump, 375 F. Supp. 3d 280 (E.D.N.Y. 2019) .......................................................... 21, 27
Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) ................................................................................ 16
Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008) ............................................... 18
Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) ............................................................. 16
Tennessee v. Dep’t of Educ., 104 F.4th 577 (6th Cir. 2024)......................................................... 25
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) ...................................................................... 27
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) ...................................................... 18, 27

Statutes
20 U.S.C. § 1225(b) ........................................................................................................................ 8
5 U.S.C. § 701 ............................................................................................................................... 20
5 U.S.C. § 702 ................................................................................................................................. 3
5 U.S.C. § 705 ............................................................................................................................... 19
American Rescue Plan Act of 2021 (“ARP”), Pub. L. No. 117-2 (2021) ...................... 5, 6, 23, 24
Coronavirus Response and Relief Supplemental Appropriations Act of 2021, Pub.
  L. No. 116-260 .................................................................................................................. 5, 6, 23
Fiscal Responsibility Act of 2023, Pub. Law 118-5 (June 3, 2023) ............................................. 24
Fiscal Responsibility of Act of 2023, Pub. L. 118-5 ...................................................................... 7



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Rules
Fed. R. Civ. P. 65(b)(1)................................................................................................................. 18

Regulations
2 C.F.R. § 200.344(c).......................................................................................................... 8, 15, 20

Other Authorities
N.Y. State Dep’t of Educ., American Rescue Plan Elementary and Secondary
  School Emergency Relief (ARP-ESSER) Fund, https://www.nysed.gov/federal-
  education-covid-response-funding/american-rescue-plan-elementary-and-
  secondary-school ........................................................................................................................ 6
Senate Report 118-84, Committee on Appropriations 253 (July 27, 2023) ................................... 7
U.S. Dep’t of Educ., An Overview of ARP-HCY State Plans (May 2022),
  https://files.eric.ed.gov/fulltext/ED628077.pdf .......................................................................... 6
U.S. Dep’t of Educ., Emergency Assistance to Non-Public Schools (ARP-EANS),
  https://www.ed.gov/grants-and-programs/formula-grants/response-formula-
  grants/covid-19-emergency-relief-grants/emergency-assistance-to-non-public-
  schools ........................................................................................................................................ 6




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                                         INTRODUCTION

        During the COVID-19 pandemic, Congress enacted numerous major appropriations laws

to respond to the nationwide health crisis and resulting economic devastation and place the nation

on a path to recovery once the pandemic ended. Among these laws were the Coronavirus Response

and Relief Supplemental Appropriations Act of 2021 (“CRRSA”), and the American Rescue Plan

Act of 2021 (“ARP”), which collectively appropriated more than $250 billion in education

stabilization (“ES”) funding to address pandemic-related problems devastating the country’s state

education systems. The critical education investments implemented through ES funding focused

on addressing the impact of lost instructional time through interventions such as summer learning

and afterschool programs, along with other initiatives to mitigate the devastating effects of the

pandemic on K-12 students.

        As detailed in the supporting declarations,1 the 17 Plaintiffs2 were collectively awarded

over $1 billion dollars in ES funding—monies relied on by their state education departments and

local school districts to enter into contracts with service providers and hire staff to provide critical

education-related programs and services designed, as Congress intended, to address problems that

had emerged during the pandemic but did not end once the public health emergency ended. For

the final tranche of ES grants appropriated under ARP, under applicable law and regulations



1
 A table listing the 17 declarations filed by Plaintiffs in support of their motion is attached as
Exhibit A.
2
  Plaintiffs are: New York, Arizona, California, the District of Columbia, Delaware, Hawai’i,
Illinois, Maine, Maryland, Massachusetts, People of the State of Michigan, Minnesota, New
Jersey, New Mexico, Nevada, Oregon, and Josh Shapiro, in his official capacity as the Governor
of the Commonwealth of Pennsylvania.
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Plaintiffs had until January 28, 2025, to request reimbursements from Defendant U.S. Department

of Education (“ED”) from their ARP ES funding (the “liquidation period”).

       In late 2024 and early 2025, long after the federal government had declared that the

COVID-19 pandemic was over, ED extended Plaintiffs’ liquidation periods for ARP awards

through March 2026. ED granted these extensions based on findings that Plaintiffs had submitted

sufficient justification and documentation to warrant granting additional time, consistent with

Congress’s intent that states be afforded reasonable opportunity to draw down on their ES funds.

       However, on March 28, 2025—long before the expiration of Plaintiffs’ window to access

funds awarded under ARP—Defendants abruptly and arbitrarily rescinded all of ED’s prior

extension approvals and deemed the window for Plaintiffs to draw down ES funds to have already

expired, throwing into chaos a wide range of critical education programs and services needed to

combat the long-term effects of the pandemic.3 The sole stated basis for ED’s change in position

was that the ES funding was appropriated through a COVID-19 related law and, according to

Defendants, because “the COVID pandemic ended” any extension was suddenly “not consistent

with the Department’s priorities and thus not a worthwhile exercise of its discretion.” See March

28, 2025, Letter from Secretary McMahon to State Chiefs of Education (the “Rescission Letter”),

Complaint (“Compl.”) at Ex. A (ECF No. 1-1).

       Plaintiffs bring this action against ED and Education Secretary Linda McMahon for

preliminary and permanent injunctive relief to prevent them from rescinding ED’s prior approvals




3
  Defendants’ rescission also applied to the penultimate tranche of ES grants authorized by
CRRSA, which could be used to pay for obligations incurred under contracts entered into on or
before September 30, 2023. Maryland, Michigan, and Pennsylvania have yet to liquidate all of
their CRRSA obligations; their deadline to request reimbursement for CRRSA grants had been
extended by ED until March 31, 2025. See Wright-MD ¶¶ 7–9; Rice-MI ¶10.

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of Plaintiffs’ extension requests and declaring Plaintiffs’ liquidation periods to have already

expired. Plaintiffs also seek injunctive relief reinstating the previously-granted extensions for them

to liquidate their ES funding. And Plaintiffs seek a declaration that ED’s change in position on

Plaintiffs’ previously-approved extension requests violates the Administrative Procedures Act

(“APA”).

       Plaintiffs are entitled to a preliminary injunction (“PI”) barring Defendants from enforcing

the Rescission Letter against them or otherwise rescinding ED’s prior approval of their extension

requests to maintain the status quo pending resolution of this action.

       As a threshold matter, this Court has jurisdiction to review Defendants’ final agency action

under the APA, which waives the federal government’s sovereign immunity for claims seeking

relief other than “money damages.” 5 U.S.C. §702. This action seeks to vacate ED’s determination

to rescind the extension approvals it previously granted and declare Plaintiffs’ liquidation period

already expired, not an award of “money damages.” That the requested relief may result in

Plaintiffs submitting timely payment requests on their ES funding does not convert this case to one

seeking “money damages”; it is settled law that district courts have jurisdiction over challenges to

final agency action under APA §702, even when a remedial order may result in the disbursement

of funds. See Bowen v. Massachusetts, 487 U.S. 879, 910 (1988); Linea Area Nacional de Chile

S.A. v. Meissner, 65 F.3d 1034, 1042 (2d Cir. 1995). Nor is there any serious doubt that Plaintiffs

have Article III standing to bring this challenge. Absent relief, Plaintiffs will lose funding, lay off

staff, and cut programs and services. This is concrete injury directly traceable to Defendants’

Rescission Letter and likely to be redressed by a favorable judicial decision vacating the rescission

of ED’s prior extension approvals and restoring Plaintiffs’ extended liquidation periods.

       Moreover, all the factors for granting a PI tip decidedly in Plaintiffs’ favor.



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       First, Plaintiffs are likely to succeed on the merits because ED’s change in position is

arbitrary and capricious and unlawful in violation of the APA as it: (1) assumes incorrectly that all

ES appropriations were intended only for use during the pandemic; (2) lacks any reasoned

explanation, with Defendants’ sole purported justification being that the pandemic ended (which

occurred long before ED approved Plaintiffs’ extension requests); (3) ignores Plaintiffs’

substantial reliance interests on the approved extensions; and (4) contravenes Congress’ intent to

use ES funding to mitigate the pandemic’s long-term effects.

       Second, Plaintiffs will suffer irreparable harm absent immediate relief. Defendants’ sudden

termination of Plaintiffs’ liquidation period has already caused, and will continue to cause,

immediate and devastating harm to Plaintiffs, their local school districts, their residents, and the

public. Defendants’ action deprives Plaintiffs of the previously-approved extensions of time to

access hundreds of millions of dollars in critical ES funding, on which Plaintiffs’ and their local

school districts’ budgets have relied to implement programs and services that address ongoing and

emerging educational needs of students and local school districts, and which Plaintiffs need to

fulfill their duty to provide for the educational needs of their student populations. Absent

preliminary injunctive relief, Plaintiffs will be unable to make timely requests for funds needed to

provide essential public education services for their K-12 students, pay staff, satisfy obligations to

public and private partners, and otherwise mitigate the pandemic’s long-term devastating effects

on public and private education.

       Third, the balance of equities tips in favor of Plaintiffs, and a PI is in the public interest.

Plaintiffs have shown an overwhelming likelihood of prevailing on the merits in challenging ED’s

drastic change in position, which strongly indicates that a PI would serve the public interest.

Conversely, there is no public interest served by perpetuating ED’s unlawful agency action. And



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Defendants suffer no harm from a PI that merely preserves the status quo by halting

implementation of the agency’s unlawful change in position.

                                         BACKGROUND

A. Congress Appropriated Funds to Mitigate the Immediate and Long-Term
   Devastating Impacts of the Pandemic on K-through-12 Students

       From 2020 to 2021, Congress enacted numerous major appropriations laws to, among other

things, provide 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 2021.4

       ARP established, and appropriated moneys for, three ES funds: (i) the Elementary and

Secondary School Emergency Relief (“ESSER”) program, id. §2001; (ii) the Homeless Children

and Youth (“HCY”) program, id. §2001(b)(1); and (iii) the Emergency Assistance to Nonpublic

Schools (“EANS”) program, id. §2002. The critical education investments implemented through

these ES funds focused on: (i) supporting the safe return to in-person instruction and continuity of

services; (ii) addressing the impact of lost instructional time through implementation of evidence-

based interventions, such as summer learning or summer enrichment, extended day,

comprehensive afterschool programs, and extended school year programs; (iii) ensuring that such

interventions respond to students’ academic, social, and emotional needs; (iv) addressing the

disproportionate impact of the coronavirus on economically disadvantaged students, children with

disabilities, English learners, racial and ethnic minorities, migrant students, students experiencing



4
 As noted supra n. 3, some of the relevant ES grants to Maryland, Michigan, and Pennsylvania
were authorized under a different appropriations law, the Coronavirus Response and Relief
Supplemental Appropriations Act of 2021, Pub. L. No. 116-260, enacted in December 2020.

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homelessness, and children and youth in foster care; (v) providing services and assistance to

eligible non-public schools significantly impacted by the pandemic, including those with high

percentages of low-income students; and (vi) addressing the urgent needs of homeless children

and youth exacerbated by the pandemic.5

       In appropriating moneys for these programs, Congress did not intend that the ES funding

end concurrently with the COVID-19 emergency. First, there is no language in ARP or CRRSA

tying distribution of ES funding to the pendency of the pandemic. Rather, Congress specified that

funds appropriated were “to remain available” for obligations incurred through specific dates

regardless of when the pandemic was declared over. ARP §2001(a) (obligations incurred “through

September 30, 2023”); CRRSA §311 (obligations incurred “through September 20, 2022”).

Moreover, Congress specified that the ES funds be made available to mitigate the deleterious

effects of the pandemic extending beyond the period of the declared health emergency due to

“learning loss” suffered by students. E.g., ARP §2001(d)(1); CRRSA §313(d)(13). In ARP, for

example, Congress required that “not less than 20 percent” of the ES funds be used to implement

“evidence-based interventions, such as summer learning or summer enrichment, extended day,

comprehensive afterschool programs or extended school year programs,” to ensure that state

educational departments “respond to students’ academic, social, and emotional needs and address




5
  See, e.g., N.Y. State Dep’t of Educ., American Rescue Plan Elementary and Secondary School
Emergency Relief (ARP-ESSER) Fund, https://www.nysed.gov/federal-education-covid-
response-funding/american-rescue-plan-elementary-and-secondary-school; U.S. Dep’t of Educ.,
Emergency Assistance to Non-Public Schools (ARP-EANS), https://www.ed.gov/grants-and-
programs/formula-grants/response-formula-grants/covid-19-emergency-relief-grants/emergency-
assistance-to-non-public-schools; U.S. Dep’t of Educ., An Overview of ARP-HCY State Plans
(May 2022), https://files.eric.ed.gov/fulltext/ED628077.pdf.

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the disproportionate impact of the coronavirus on . . . students experiencing homelessness, and

children and youth in foster care.” ARP §2001(d)(1).

        Second, Congress did not take any action to rescind the ES funding appropriations when

the federal government declared the pandemic over in May 2023, as Congress did for other

appropriations. See, e.g., Fiscal Responsibility of Act of 2023, Pub. L. 118-5, Div. B, Title I

(rescinding some appropriations after pandemic declared over while keeping others in place,

including funding at issue here).

        Third, in 2023, the Senate Committee on Appropriations encouraged ED “to extend the

period for liquidating financial obligations incurred under grants awarded by” ED, to “announce

its policy and process as soon and transparently as possible,” and to “ensure that its process …

minimizes the administrative burden [on recipients] to the extent practicable, including by not

requiring excessive documentation.” Senate Report 118-84, Committee on Appropriations 253

(July 27, 2023) (“Committee on Appropriations Report”), available at https://perma.cc/BGA9-

XFBP.

B. ED Granted Extensions Permitting Plaintiffs to Timely Seek Reimbursement
   Through March 2026 and Then Abruptly Rescinded the Extensions and Declared
   Plaintiffs’ Liquidation Periods to Have Already Expired

        In total, Plaintiffs were awarded over $50 billion in ES funding. Compl. ¶46 (chart). This

ES funding falls into two broad categories: (1) programmatic funds, which flow through state

education agencies (“SEAs”) to local education agencies (“LEAs”) to pay for the various projects,

facility upgrades, and support services for which Congress specified the funds were to be used;

and (2) administrative funds, which flow to the SEAs to cover the cost of managing and

distributing the programmatic funds to the LEAs, i.e., to cover overhead and salaries of dedicated

state staff necessary to administer the ES funding programs, services, and projects run by the

LEAs. See, e.g., Coughlin-NY ¶55-57.
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       The grants awarded by ED to Plaintiffs for the ARP ESSER, HCY, and EANS programs

were initially available to Plaintiffs to fund obligations incurred under contracts entered into

through September 30, 2023. ARP §2001(a). Under applicable regulations, Plaintiffs had 120 days

from September 30, 2023, to draw down on, or liquidate, their awards. 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.”). But each State was

entitled to an additional year—to September 30, 2024—in which to incur obligations eligible for

funding under these programs in accordance with the “Tydings amendment,” Section 421(b) of

the General Educational Provisions Act, codified at 20 U.S.C. §1225(b). Plaintiffs thus had until

January 28, 2025 (120 days from September 30, 2024) to liquidate their ARP ES funds obligated

under contracts entered into on or prior to September 30, 2024.

       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; Committee on Appropriations Report at 253

(encouraging ED to extend liquidation periods through a process imposing minimal burden on

recipients). 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.6 ED granted each State’s extension request, based on specific findings that the requesting



6
 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.

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State had submitted sufficient justification and documentation to warrant granting the extension

and setting the new liquidation deadline to be March 2026,7 with only one exception.8 Accordingly,

Plaintiffs 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 LEAs relied on that understanding in creating budgets, hiring staff,

undertaking facility upgrade projects, and planning programs and services for children and

families.9

       But 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 Rescission Letter from Secretary McMahon. See Compl., Ex. A. The

Rescission Letter, also dated March 28, 2025, 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. In other words, Plaintiffs were notified by Secretary McMahon that their




7
 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.
8
  For California’s EANS award, ED extended the liquidation period only through December 2025.
Pierson-CA ¶6. As this is the only ARP award for which ED did not extend the liquidation period
through March 2026, Plaintiffs will refer to their approved liquidation periods as extending
through March 2026 with the caveat noted here that there is this one exception.
9
 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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previously approved extensions were rescinded and their liquidation periods for accessing their ES

funding were deemed to have already expired effective three minutes prior to their receipt of the

Secretary’s letter.

        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 Rescission

Letter also advised that ED found “any reliance interests developed” by ES funding 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 Rescission

Letter, they understood and believed they could access through March 2026.10

C. Plaintiffs Have Suffered and Will Continue to Suffer Substantial Harm From
   Defendants’ Rescission of ED’s Prior Extension Approvals

        Defendants’ sudden rescission of ED’s prior extension approvals and determination that

Plaintiffs’ liquidation periods have already expired has had immediate adverse consequences .




10
   This amount is the total unliquidated ARP ES funding amounts for each State as of March 28,
2025, which excludes the CRRSA funds that Maryland, Michigan, and Pennsylvania had not yet
liquidated as of that date (which had a liquidation period through March 2025 rather than March
2026). See Compl. ¶46 (chart); Wright-MD ¶8; Rice-MI ¶10; Rowe-PA ¶23.

                                                  10
         Case 1:25-cv-02990-ER       Document 11        Filed 04/11/25      Page 16 of 38




         First, the Rescission Letter has blocked Plaintiffs from submitting payment requests to

access the remaining unliquidated administrative portions of their ES funding, monies that are paid

directly to the SEAs to cover the cost of managing and distributing the programmatic funds, i.e.,

to cover overhead, including the salaries of dedicated support staff, and other expenses necessary

to administer the ES funding programs. Compl. ¶39. As of the date ED sent the Rescission Letter,

the amount of Plaintiffs’ unliquidated administrative portions of their ES funding was over $28

million.11 As a result of Defendants’ unlawful Rescission Letter, some of the SEAs have had to

lay off or furlough staff dedicated to administering the ES funding programs, or anticipate doing

so in the near future.12

         Second, because the Rescission Letter has blocked Plaintiffs from submitting payment

requests to access the remaining unliquidated programmatic portions of their ES funding, their

SEAs and LEAs have already had—or anticipating having in the near future—to terminate

contracts with vendors and other partners (some of whom had already broken ground on capital

improvement projects, like the installation of new ventilation equipment) that were being paid

exclusively with programmatic ES funding.13 Notably, many of the programs that have been, or

soon will be, discontinued due to the Rescission Letter are intended to compensate for lost




11
 Coughlin-NY ¶42; Wright–MD ¶¶8, 10; Rice-MI ¶24; Stewart-DC ¶¶10-11; Rowe-PA ¶23;
Wetherell-OR ¶14; Ehling-NJ ¶¶11-12; Maestretti-CA ¶6; Portner-HI ¶9; Marten-DE ¶13.
12
     Coughlin-NY ¶55-57; Seaton-IL ¶¶25(c),(f).
13
  Coughlin-NY ¶50-54; Slaga-AZ ¶¶26-27; Wright-MD ¶9; Perkins-Cohen-MD ¶¶13–15; Rice-
MI ¶25; Seaton-IL ¶25(a); Rowe-PA ¶¶24, 25, 28; Maestretti-CA ¶7 (explaining that LEAs, school
districts, and vendors have all communicated with CDE “understandably confused and panicked
about the possibility of non-payment for services and inability to continue ARPA-funded
programs”).


                                                  11
            Case 1:25-cv-02990-ER          Document 11         Filed 04/11/25     Page 17 of 38




     instruction time during the pandemic, such as summer school and extended day programs.14

     Plaintiffs need these programs now to mitigate the pandemic’s long-term effects on students’

     educational achievement; even if these programs can be re-established following the successful

     resolution of this action, students and schools will be harmed from the delay in providing them

     with this additional instruction time.15 And there is no guarantee that vendors and staff who have

     worked on these projects will be willing or able to pick up where they left off should the projects

     be restarted following the entry of final judgment in Plaintiffs’ favor.16

                                                ARGUMENT

I.        THIS COURT HAS JURISDICTION OVER THE STATES’ CLAIMS

            A. The Tucker Act Does Not Apply

            Defendants will likely argue—as the federal government has in other matters—that

     because this case relates to federal grants, the Court of Federal Claims has exclusive jurisdiction

     to hear this matter under the Tucker Act. Defendants’ argument contravenes the general rule that

     district courts have jurisdiction over challenges to final agency action under §702 of the APA,

     including when a remedial order may result in the disbursement of funds. Bowen v. Massachusetts,

     487 U.S. 879, 910 (1988); Linea Area Nacional de Chile S.A. v. Meissner, 65 F.3d 1034, 1042 (2d

     Cir. 1995) (citing Bowen in rejecting argument that agency’s refusal to allow reimbursement under




     14
       Coughlin-NY ¶50-54; Slaga-AZ ¶¶11, 14; Wright-MD ¶6; Perkins-Cohen-MD ¶¶6–7; Bell-MA
     ¶22; Seaton-IL ¶¶24,25(a)-(g); Stewart-DC ¶¶5, 12; Chasse Johndro-ME ¶9, 14, 18; Rowe-PA
     ¶25; Ehling-NJ ¶7; Pierson-CA ¶¶14-16; Marten-DE ¶7.
     15
       Coughlin-NY ¶54; Slaga-AZ ¶¶11, 14, 28; Wright-MD ¶11; Perkins-Cohen-MD ¶¶6–7, 15–16;
     Rowe-PA ¶¶25-27; Marten-DE ¶¶7-8; see also Pierson-CA ¶¶14-16.
     16
      Coughlin-NY ¶76; Slaga-AZ ¶27; Perkins-Cohen-MD ¶15; Stewart-DC ¶12; Chasse Johndro-
     ME ¶17; Rowe-PA ¶¶25-26.

                                                      12
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statutory entitlement was a claim for money damages outside the scope of the APA’s sovereign

immunity waiver under §702).

       Bowen is directly on point. That case involved the federal contribution to state Medicaid

programs. 487 U.S. at 883. The Secretary of Health and Human Services (“HHS Secretary”)

disallowed reimbursement to Massachusetts for certain services. Id. at 887. Massachusetts sued

the HHS Secretary, challenging the determination under §702 of the APA. Id. In the Supreme

Court, the HHS Secretary argued that the Court of Federal Claims had exclusive jurisdiction over

Massachusetts’s claim. Id. at 890-91.

       The Supreme Court held that reversing a disallowance decision by the Secretary, which

resulted in the payment of money by the United States, was not “money damages” precluding the

exercise of jurisdiction by the district court under §702 of the APA. Id. at 893. The Court

emphasized that “[t]he fact that a judicial remedy may require one party to pay money to another

is not a sufficient reason to characterize the relief as ‘money damages.’” Id. at 893. Rather, the

relevant inquiry is whether the remedy is a “‘substitute for a suffered loss,’” or “‘the very thing to

which [the plaintiff] was entitled’” in the first place. Id. at 895 (quoting Md. Dep’t of Hum.

Resources v. Dep’t of Health & Hum. Services, 763 F.2d 1441, 1446 (D.C. Cir. 1985)). In rejecting

the Secretary’s position, the Court drew a critical distinction between a claim for “money

damages” and a claim for “monetary relief,” finding §702 only precluded review under the APA

of the former:

                 There is no evidence that any legislator . . . understood the words “money
                 damages” [in §702] to have any meaning other than the ordinary
                 understanding of the term as used in the common law for centuries. No one
                 suggested that the term was the functional equivalent of a broader concept
                 such as “monetary relief” and no one proposed that the broader term be
                 substituted for the familiar one.




                                                 13
       Case 1:25-cv-02990-ER          Document 11         Filed 04/11/25     Page 19 of 38




Id. at 897. Based on this distinction, the Court held that the state’s suit to enforce a statutory

entitlement to reimbursement “is not a suit seeking money in compensation for the damage

sustained by the failure of the Federal Government to pay as mandated; rather, it is a suit seeking

to enforce the statutory mandate itself, which happens to be one for the payment of money.” Id. at

900 (emphasis in original). “The fact that the mandate is one for the payment of money must not

be confused with the question whether such payment, in these circumstances, is a payment of

money as damages or as specific relief.” Id. at 900-01.

       The same reasoning applies here. Plaintiffs do not seek an award of money damages to

compensate them for ED’s refusal to disburse their ES funding. Rather, as in Bowen, they seek “to

hold unlawful and set aside agency action” that rescinded ED’s prior extension approvals and

declared Plaintiffs’ liquidation periods to have already expired, thereby terminating Plaintiffs’

ability to submit timely payment requests through March 2026. Id. at 910. This Court, as the

“reviewing court,” has “jurisdiction under §702 to review” Defendants’ final agency action set

forth in the Rescission Letter and to grant Plaintiffs “the complete relief authorized by § 706.” Id.

       The Supreme Court’s recent motion order granting a stay in Dep’t of Educ. v. California,

604 U.S. ___, 2025 WL 1008354 (April 4, 2025), does not require a different result.

       First, the Court’s stay order, issued “with barebones briefing, no argument, and scarce time

for reflection,” 2025 WL 1008354 at *2 (Kagan, dissenting), does not overrule Bowen; indeed, the

majority cites to Bowen as controlling law, id. at *1 (per curiam).

       Second, the stay order noted that the Tucker Act “grants the Court of Federal Claims

jurisdiction over suits based on any express or implied contract with the United States,” id. at *1

(internal quotations omitted), and appeared to conclude that the district court’s PI “enforc[ed] a

contractual obligation to pay money,” id. at *1-2. Here, ED granted extensions pursuant to its



                                                 14
       Case 1:25-cv-02990-ER          Document 11        Filed 04/11/25      Page 20 of 38




regulatory authority under 2 C.F.R. §200.344(c), and in purporting to rescind those extensions,

Defendants have invoked the administrative law principle that “an agency may reconsider its prior

decision,” ECF No. 1-1, at 1 & n.1 (citing Ivy Sports Med., LLC v. Burwell, 767 F.3d 81, 86 (D.C.

Cir. 2014)). This case, in other words, is an administrative law case, not a contract case, and does

not turn on the particular terms and conditions of ED’s grant awards. And Plaintiffs’ accompanying

proposed PI Order (attached as Exhibit B) requires maintaining the status quo of the previously

granted extensions; it does not require the payment of past-due obligations. See Bowen, 487 U.S.

at 910 (“[S]ince the orders are for specific relief (they undo the Secretary’s refusal to reimburse

the State), rather than for money damages (they do not provide relief that substitutes for that which

ought to have been done), they are within the District Court’s jurisdiction under §702’s waiver of

sovereign immunity.”).

       Third, as in Bowen, this case involves a decision by an agency head that categorically

rescinds previously approved extensions across an entire grant program. Such a decision

“represents an ongoing policy that has significant prospective effect,” see Bowen, 487 U.S. at 889

(quoting Massachusetts v. Sec’y of Health & Hum. Servs., 816 F.2d 796, 799 (1st Cir. 1987), aff’d

in part, rev’d in part sub nom. Bowen v. Massachusetts, 487 U.S. 879 (1988)), and “reviewing the

Secretary’s interpretation of federal law” in that context is precisely the task that Bowen deemed

appropriate for APA review. Id. at 909–10.

       Fourth, the stay order accepted an unsubstantiated contention that the “Respondents have

represented in this litigation that they have the financial wherewithal to keep their programs

running.” 2025 WL 1008354 at *1. Here, the record establishes that Defendants’ actions prevent

Plaintiffs from submitting timely payment requests for hundreds of millions of dollars of awarded

ES funds, requiring them to cut programs and services and lay off staff because they do not have



                                                 15
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the “financial wherewithal” to keep these programs and services running or all of their employees

on the payroll.17 As the Court held in Bowen, that Plaintiffs may later receive money as the result

of an order vacating agency action is of no import: “[t]he fact that a judicial remedy may require

one party to pay money to another is not a sufficient reason to characterize the relief as ‘money

damages.’” Bowen, 487 U.S. at 893.

       B. Plaintiffs Have Standing

       To have standing, a “plaintiff must have (1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a

favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan v.

Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).

       To establish injury-in-fact, a plaintiff must demonstrate an injury that is “concrete,

particularized, and actual or imminent.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).

“A plaintiff may allege a future injury if he or she shows that the threatened injury is certainly

impending, or there is a substantial risk that the harm will occur.” New York v. U.S. Dep’t of

Commerce, 315 F. Supp. 3d 766, 782 (S.D.N.Y. 2018) (cleaned up) (quoting Susan B. Anthony

List v. Driehaus, 573 U.S. 149, 157 (2014) and Clapper, 568 U.S. at 409, 414 n.5 (2013)).

       Here, Plaintiffs have suffered a “concrete, particularized” injury because prior to March

28, 2025, they had a one-year window to access over $1 billion in unliquidated ES funds remaining

on their ESSER, HCY, and EANS grants, including over $28 million in administrative funds—

monies that are paid directly to Plaintiffs to cover the SEA’s cost of managing and distributing the



17
   See, supra, at Background C; see also Coughlin-NY ¶¶50-57, 52, 59; Slaga-AZ ¶¶19-28;
Wright-MD ¶¶10 & 12; Perkins-Cohen-MD ¶¶12–15; Rice-MI ¶¶22-25; Seaton-IL ¶¶18, 25;
Stewart-DC ¶11; Chasse Johndro-ME ¶36; Rowe-PA ¶30; Wetherell-OR ¶25; Ehling-NJ ¶20;
Marten-DE ¶13.

                                                16
       Case 1:25-cv-02990-ER         Document 11        Filed 04/11/25      Page 22 of 38




programmatic funds. See, supra, at n.10-11. Without access to their administrative ES funding,

Plaintiffs have laid off, and will continue to lay off, state employees who are dedicated to

administering the ES funding programs. Id. at n.12. Moreover, without the ability to access the

remaining unliquidated programmatic portions of the ES funding, Plaintiffs’ SEAs and LEAs have

already had—or anticipate having in the near future—to terminate contracts with vendors and other

partners, or had counterparties refuse to perform, terminating services, programs, and facility

upgrades needed to address the pandemic’s ongoing effects on K-through-12 students, with many

of the programs that have been, or soon will be, discontinued being those intended to compensate

for lost instruction time during the pandemic.18 Many of the counterparties, including education

services providers, have incurred costs for which the SEAs can no longer seek reimbursement from

ED due to the Rescission Letter, which potentially exposes SEAs to litigation and the attendant

expense.19

       In addition to establishing injury-in-fact, a plaintiff must also demonstrate that his or her

injury is “fairly traceable” to the defendant’s challenged actions. Lujan, 504 U.S. at 560 (cleaned

up). In other words, a plaintiff “must demonstrate a causal nexus between the defendant’s conduct

and the injury.” Chevron Corp. v. Donziger, 833 F.3d 74, 121 (2d Cir. 2016) (quoting Rothstein v.

UBS AG, 708 F.3d 82, 91 (2d Cir. 2013)). Here, Plaintiffs’ inability to access their ES funding is

“fairly traceable” to Defendants’ actions because it is Defendants’ rescission of the extension

approvals permitting drawdowns through March 2026 and their determination that Plaintiffs’




18
  Coughlin-NY ¶¶58-61; See Perkins-Cohen-MD ¶15; Rice-MI ¶25; Chasse Johndro-ME ¶10, 16,
17, 19; Rowe-PA ¶26; Wetherell-OR ¶37; Maestretti-CA ¶6; Pierson-CA ¶14, 15.
19
   See, e.g., Coughlin-NY ¶59 (noting SEA’s exposure of approximately $42.3 million in liability
to education services providers for their services rendered prior to March 28, 2025).

                                                17
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      liquidation periods have already expired, as set forth in the Rescission Letter, that have resulted in

      the termination of Plaintiffs’ access to their ES funding. Indeed, but for Defendants’ agency action,

      Plaintiffs and their local districts would have the continued ability to access their remaining ES

      funding through March 2026.

             “The second and third standing requirements—causation and redressability—are often

      ‘flip sides of the same coin.’” Food & Drug Admin. v. All. For Hippocratic Med., 602 U.S. 367,

      380 (2024) (quoting Sprint Commc’ns Co. v. APCC Servs., Inc., 554 U.S. 269 (2008)). If a

      defendant’s action causes an injury, enjoining the action will typically redress that injury. See All.

      For Hippocratic Med., 602 U.S. at 380–81. And the injunction need not “completely redress the

      asserted injury,” only to a sufficient degree to eliminate any effects of the challenged conduct.

      Elias Bochner, 287 7th Ave. Realty LLC v. City of New York, 118 F.4th 505, 521 (2d Cir. 2024).

      That is the case here. Plaintiffs’ injury is caused by the rescission of the prior extension approvals

      and determination that their liquidation periods to draw down on their ES funding have already

      expired. It inexorably follows that enjoining these actions will redress Plaintiffs’ harm and permit

      them to request reimbursement, as they had been doing prior to Defendants’ issuance of the

      Rescission Letter.

II.       THE COURT SHOULD PRELIMINARILY ENJOIN DEFENDANTS FROM
          RESCINDING ED’S PRIOR EXTENSIONS APPROVALS AND DECLARING
          STATES’ LIQUIDATION PERIODS TO HAVE ALREADY EXPIRED

             A 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(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,
                                                        18
       Case 1:25-cv-02990-ER          Document 11        Filed 04/11/25      Page 24 of 38




189 (S.D.N.Y. 2020), aff’d mem., No. 21-170-CV, 2022 WL 1220204 (2d Cir. Apr. 26, 2022)

(summary order). 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

preliminary injunction. See New York v. U.S. 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).

       All factors strongly weigh in favor of Plaintiffs. Accordingly, this Court should enter a PI

to enjoin Defendants from rescinding the previously-approved extension requests and determining

Plaintiffs’ liquidation periods have already expired.

       A. Plaintiffs Have a Strong Likelihood of Success on the Merits

       As detailed below, Defendants’ abrupt rescission of ED’s extension approvals and

determination that Plaintiffs’ liquidation periods have already expired are final agency actions that

violate the APA.

               1. Defendants’ Rescission Letter Constitutes Final Agency Action
                  Subject to Judicial Review Under the APA

       The challenged rescission of the prior extension approvals and determination that

Plaintiffs’ liquidation periods have already expired—one year earlier than permitted by the

extensions—constitute final agency actions subject to review under the APA.

       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 rescission of ED’s prior extension approvals and determination that Plaintiffs’ liquidation

periods have already expired meet both prongs. First, the rescission and determination “mark the

consummation” of Defendants’ decision-making process because they announce the agency’s


                                                 19
       Case 1:25-cv-02990-ER             Document 11        Filed 04/11/25      Page 25 of 38




decision to terminate, with immediate effect, the prior extension approvals and deem the

liquidation periods to have already expired. Rescission Letter at 1 (“[T]he Department has

reconsidered” the “previously granted” liquidation extension request and “is modifying the

liquidation period to end on March 28, 2025” because “further extension of the liquidation period”

is “not justified.”). Moreover, Plaintiffs are permitted to bring this challenge to both the rescission

of the extension approvals and determination that the liquidation periods have already expired—

both agency determinations set forth in the Rescission Letter—in a single action. New York v.

Trump, __ F.4th__, 2025 WL 914788, at *13 (1st Cir. Mar. 26, 2025) (“[W]e are not aware of any

supporting authority for the proposition that the APA bars a plaintiff from challenging a number

of discrete final agency actions all at once.”).

          Nor are Defendants’ rescission of ED’s prior extension approvals and determination that

the liquidation periods have already expired part of the narrow class of agency actions that are

“committed to agency discretion by law” and unreviewable in federal court. See 5 U.S.C.

§701(a)(2). Where, as here, there are applicable statutory or regulatory standards that cabin agency

discretion, see 2 C.F.R. §200.344, there are “meaningful standard[s] by which to judge the

[agency]’s action,” and the actions are reviewable. Dep’t of Com. v. New York, 588 U.S. 752, 772

(2019).

                 2. Defendants’ 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. New York v. Dep’t of Homeland Sec.,

969 F.3d 42, 81 (2d Cir. 2020). 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.
                                                   20
       Case 1:25-cv-02990-ER          Document 11        Filed 04/11/25     Page 26 of 38




Trump, 375 F. Supp. 3d 280, 355 (E.D.N.Y. 2019) (collecting cases).

       When undertaking this inquiry, a court determines whether the agency provided a genuine

justification for its action that is consistent with the evidence before it. See Dep’t of Commerce,

588 U.S. at 785. In doing so, a court considers only the justifications that an agency provided when

it implemented the policy; it does not consider any post hoc rationalizations that an agency may

rely on to support its decision with the benefit of hindsight. See Regents, 591 U.S. at 20. And the

court considers whether the policy is a reasonable response to the agency’s stated goals given the

facts before it and its statutory authority. See, e.g., Dep’t of Commerce, 588 U.S. at 785; Motor

Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

       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’ rescission of ED’s prior

extension approvals and determination that Plaintiffs’ liquidation periods have already expired is

arbitrary and capricious (Complaint Count I) under the change-in-position doctrine.

       First, Defendants clearly and intentionally changed ED’s position. Wages and White Lion



                                                21
       Case 1:25-cv-02990-ER         Document 11        Filed 04/11/25      Page 27 of 38




Investments, 2025 WL 978101 at *13. In the Rescission Letter, Secretary McMahon acknowledged

that ED “previously granted a discretionary extension of the period of liquidation” to each State,

advised she was “reconsider[ing]” that agency action, and declared she was “modifying the

liquidation period to end on March 28, 2025,” a full year earlier than provided for by ED’s prior

extension approvals. Rescission Letter at 1. Despite this clear change in position, Defendants did

not provide a reasoned explanation for their action. The sole basis Defendants offer for rescinding

the prior extension approvals is that granting additional time for Plaintiffs to access ES funding

“years after the COVID pandemic ended is not consistent with the Department’s priorities and thus

not a worthwhile exercise of its discretion.” Rescission Letter at 1. But ED previously approved

Plaintiffs’ extension requests long after the federal government had declared in May 2023 that the

COVID-19 pandemic was over.20 Defendants offer no justification for what had changed to make

the end of the pandemic a “reasoned explanation” for rescinding the previously approved extension

when the pandemic had already been over for more than a year at the time ED approved Plaintiffs’

extension requests. Up until two weeks ago, ED consistently took the position that Plaintiffs’

liquidation periods extended through March 2026.21

       Moreover, Defendants’ reliance on the end of the pandemic as justification for reversing

position assumes incorrectly that all funding related to COVID-19 appropriations was intended

only for use while the pandemic health emergency declaration was in place. Defendants point to

no facts supporting this assumption and no reasoned analysis of the specific statutory



20
  See https://perma.cc/NL4U-N99J (“May 11, 2023, marks the end of the federal COVID-19 PHE
declaration.”).
21
   For example, as recently as February 12, 2025, ED expressly informed Massachusetts that its
liquidation period for EANS and ESSER funds would extend through March 2026. Bell-MA ¶¶
12, 18.

                                                22
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appropriations or grant programs at issue. In fact, because Congress directed that the education-

related appropriations through ARP and CRRSA be utilized to address the pandemic’s long-term

devastating effects on students—including through summer instruction and after-school programs

to compensate for lost instruction time (see, supra, at Background C)—it necessarily follows that

Congress intended ES funding to remain available to Plaintiffs after the pandemic ended. E.g.,

ARP §2001(e)(1); CRRSA §313; see also, supra, at Background A.

       Second, Defendants failed to give any weight to Plaintiffs’ and their local districts’

substantial reliance interests in having a liquidation period extended through March 2026,

concluding those interests are “minimal” and “unreasonable” because the extension approvals

were “issued recently” and were “a matter of administrative grace” subject to reconsideration.

Compl., Ex. A at 1. But Defendants’ conclusion that all the extensions were “issued recently” is

demonstrably false; many extensions were approved months ago.22 And in the intervening time,

Plaintiffs and their local districts have created budgets, hired staff, offered services to families and

children, and developed operating plans in reliance on the fact that the liquidation period extends

through March 2026.23

       Nor does an agency’s inherent power to reconsider prior determinations mean that it is

inherently “unreasonable” for a regulated entity to rely on an agency “adhering to its original




22
  For example, ED approved New York’s extension request for the ARP EANS program in
September 2024. See Coughlin-NY ¶26; see also Wright-MD ¶7; Perkins-Cohen-MD ¶6; Rice-MI
¶10–13; Bell-MA ¶¶9, 15; Seaton-IL ¶¶14, 16; Stewart-DC ¶¶6-8; Rowe-PA ¶¶8, 12; Wetherell-
OR ¶¶8-9, 12; Ehling-NJ ¶11; Padilla-NM ¶¶11, 13, 15; Pierson-CA ¶6; Portner-HI ¶8; Marten-
DE ¶12
23
  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.

                                                  23
       Case 1:25-cv-02990-ER          Document 11        Filed 04/11/25     Page 29 of 38




decision,” as Defendants contend. Rescission Letter at 1. If that were true, then a regulated entity

could never have reliance interests in any agency determination, a result that 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”).

        In addition, Plaintiffs will also likely succeed on their claim that Defendants’ actions are

contrary to law (Complaint Count II). Defendants’ actions are based on their view that it was

improper to grant Plaintiffs extensions of the liquidation period “years after the COVID pandemic

ended.” Rescission Letter at 1. Their view is contrary to law. 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 §1109(h) (“until the date

on which the national emergency . . . expires”).

        Moreover, after the federal government declared the pandemic health emergency over in

May 2023, Congress enacted specific legislation rescinding certain coronavirus-related

appropriations without referencing the ARP appropriations at issue here. See Fiscal Responsibility

Act of 2023, Pub. Law 118-5 (June 3, 2023) (rescinding $27 billion of appropriations deemed no

longer necessary once the pandemic was over). This evidences Congress’ intent to retain the ES

funding in place for Plaintiffs to continue utilizing to address the long-term effects of COVID-19



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despite the end of the pandemic. See Russello v. United States, 464 U.S. 16, 23 (1983) (“[W]here

Congress includes particular language in one section of a statute but omits it in another section of

the same Act, it is generally presumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion.”).

       B. Plaintiffs Will Suffer Irreparable Harm Absent a PI

       Defendants’ rescission of ED’s prior extension approvals and decision to close Plaintiffs’

window for accessing their ES funding effective immediately—an entire year early—has

irreparably harmed, and will continue to irreparably harm, Plaintiffs. As explained above (see,

supra, at Background C), Defendants’ abrupt reversal of position on the extension approvals and

determination that Plaintiffs’ liquidation periods have already expired have caused—and will

continue to cause—substantial operational burdens for SEAs and LEAs, leading many SEAs to

lay off or furlough state employees who administer the ES funding programs and whose salaries

are paid from the administrative portion of the funding, see supra, at n.12, with no guarantee that

terminated employees will be available to be rehired at the conclusion of this case and with any

new hires needing to be trained using additional state resources. See City & County of San

Francisco v. USCIS, 408 F. Supp. 3d 1057, 1123 (N.D. Cal. 2019) (recognizing “burdens on . . .

ongoing operations” for public entities, including administrative costs caused by changes in federal

policy, constitute irreparable harm); Tennessee v. Dep’t of Educ., 104 F.4th 577, 613 (6th Cir.

2024) (same); cf. Carson v. American Brands, Inc., 450 U.S. 79, 89 & n. 16 (1981) (recognizing

that denial of job opportunities and loss of training can constitute “serious or irreparable harm.”).

       Even recoverable costs, “may constitute irreparable harm . . . where the loss threatens the

very existence” of an organization or program. Packard Elevator v. ICC, 782 F. 2d 112, 115 (8th

Cir. 1986); see Am. Ass’n of Colleges for Teacher Educ. v. McMahon, No. 1:25-CV-00702-JRR,

___ F. Supp. 3d ___, 2025 WL 833917, at *23 (D. Md. Mar. 17, 2025) (agency action affecting
                                                 25
       Case 1:25-cv-02990-ER          Document 11        Filed 04/11/25     Page 31 of 38




existence of programs and livelihoods of individuals within those programs constituted irreparable

harm). The immediate expiration of Plaintiffs’ liquidation periods has required, and will continue

to require, SEAs and LEAs to shutter key programs they have developed to counter the pandemic’s

long-term effects, and ultimately, the absence of these initiatives will worsen education outcomes

by depriving students of critical assistance they need to overcome the pandemic’s effects,

including lost instruction time. See, supra, at Background C. While Plaintiffs and their SEAs

would have had the opportunity to consider pursuing legislative proposals and budget planning

that might have established some funding to allow Plaintiffs to implement some of these initiatives

on their own, they had no need to do so because they relied on the previously extended liquidation

period making ES funding available. By reneging on the previously approved extensions, ED

irreparably harms Plaintiffs because the opportunity they would have had to consider stepping in

with funds from the state fisc is an opportunity that has been irretrievably lost due to the passage

of time. See, e.g., Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 537 (N.D. Cal. 2017),

reconsideration denied, 267 F. Supp. 3d 1201 (N.D. Cal. 2017) (uncertainty prompted by executive

order withholding funds caused irreparable harm by “interfer[ing] with the Counties’ ability to

budget, plan for the future, and properly serve their residents” and by requiring Counties to make

cuts to other services); Mich. v. DeVos, 481 F. Supp. 3d 984, 988–89 (N.D. Cal. 2020) (plaintiffs

demonstrated likelihood of irreparable harm by detailing, “often on a district and school-level

basis, the financial and operational harms” caused by requiring state agencies to divert millions of

dollars in federal funding from programs earmarked to support public schools to other programs);

Kansas v. United States, 249 F.3d 1213, 1227-28 (10th Cir. 2001) (threats to State’s public policy

and sovereign interests constitute irreparable harm).

       Absent relief from this Court, Plaintiffs—including their education departments, local



                                                26
       Case 1:25-cv-02990-ER            Document 11         Filed 04/11/25       Page 32 of 38




school districts, and the communities they serve—have suffered, and will continue to suffer,

immediate and irreparable harm through the irredeemable loss of programs and services necessary

to address the pandemic’s long-term effects, and the need to lay off staff that run those programs

and services whose salaries are paid through the ES funding grants.

        C. The Public Interest and Balance of Equities Strongly Favor Granting a PI

        To obtain preliminary relief, plaintiffs must also show that the balance of equities tips in

their favor, and that an injunction is in the public interest. Winter, 555 U.S. at 20. When the federal

government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

        As an initial matter, Plaintiffs have established both an overwhelming likelihood of

prevailing on the merits and irreparable harm. This “extremely high likelihood of success on the

merits is a strong indicator that a preliminary injunction would serve the public interest.” League

of Women Voters of United States v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016); see also Saget, 375

F. Supp. 3d at 377 (“Because Plaintiffs have shown both a likelihood of success on the merits and

irreparable harm, it is also likely the public interest supports preliminary relief.” (citing Issa v. Sch.

Dist. of Lancaster, 847 F.3d 121, 143 (3d Cir. 2017)).

        Moreover, “there is a substantial public interest ‘in having governmental agencies abide by

the federal laws that govern their existence and operations.’” League of Women Voters, 838 F.3d

at 12 (quoting Washington v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994)). Conversely, courts

routinely observe that “there is generally no public interest in the perpetuation of unlawful agency

action.” Planned Parenthood of N.Y.C. v. U.S. Dep’t of Health & Hum. Servs., 337 F. Supp. 3d

308, 343 (S.D.N.Y. 2018) (internal quotation marks, citations, and alterations omitted) (collecting

cases). As Plaintiffs have shown, Defendants’ rescission of the prior extension approvals and

determination that Plaintiffs’ liquidation periods have already expired violate the APA. See, supra,

Point II.A. There is, therefore, a strong public interest in preliminarily enjoining Defendants from
                                                   27
       Case 1:25-cv-02990-ER          Document 11         Filed 04/11/25    Page 33 of 38




continuing to implement and enforce the Rescission Letter. Put simply, the public has a strong

interest in the federal government playing by the rules. See, e.g., Deferio v. City of Syracuse, 193

F. Supp. 3d 119, 131 (N.D.N.Y. 2016) (“[I]t is decidedly against the public interest to abide the

continued enforcement of an unconstitutional policy or law.”).

       By contrast, the federal government does not suffer harm from an injunction that preserves

the status quo pending litigation by pausing implementation of an unlawful practice. See R.I.L-R

v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) (quoting Rodriguez v. Robbins, 715 F.3d 1127,

1145 (9th Cir. 2013)). There is no public interest served by allowing ED to implement its abrupt

and unlawful change position during this litigation.

                                         CONCLUSION

       For these reasons, Plaintiffs respectfully request that the Court enter the accompanying

Proposed Preliminary Injunction Order to enjoin Defendants from enforcing the directives in the

Rescission Letter against Plaintiffs, along with granting such other relief as the Court deems

necessary and appropriate to maintain the status quo pending resolution of this action.

Dated: New York, New York
       April 11, 2025


                                                       Respectfully submitted,




                                                28
      Case 1:25-cv-02990-ER          Document 11   Filed 04/11/25     Page 34 of 38




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
  Assistant Attorney General                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
                                            KATHLEEN JENNINGS
                                            ATTORNEY GENERAL OF THE STATE OF
ROB BONTA                                   DELAWARE
ATTORNEY GENERAL OF CALIFORNIA
                                            By: /s/ Vanessa L. Kassab
By: /s/ Maureen C. Onyeagbako               Ian Liston
Maureen C. Onyeagbako*                        Director of Impact Litigation
  Supervising Deputy Attorney General       Vanessa L. Kassab
José Pablo Galán de la Cruz*                  Deputy Attorney General
  Deputy Attorney General                   Delaware Department of Justice
Cheryl L. Feiner*                           820 N. French Street
  Senior Assistant Attorney General         Wilmington, DE 19801
California Attorney General’s Office        (302) 683-8899
1300 I Street, Ste. 125                     vanessa.kassab@delaware.gov
P.O. Box 944255
Sacramento, CA 94244-2550                   Counsel for the State of Delaware
Telephone: (916) 210-7324
Email: Maureen.Onyeagbako@doj.ca.gov
        Pablo.Galan@doj.ca.gov
        Cheryl.Feiner@doj.ca.gov

Counsel for Plaintiff State of California




                                            29
     Case 1:25-cv-02990-ER         Document 11   Filed 04/11/25       Page 35 of 38




BRIAN L. SCHWALB                          ANNE E. LOPEZ
ATTORNEY GENERAL FOR THE DISTRICT OF      ATTORNEY GENERAL FOR THE STATE OF
COLUMBIA                                  HAWAIʻI

By: /s/ Andrew Mendrala                   By: /s/ Kalikoʻonālani D. Fernandes
Andrew Mendrala*                          David D. Day*
  Assistant Attorney General                Special Assistant to the Attorney General
Public Advocacy Division                  Kalikoʻonālani D. Fernandes*
Office of the Attorney General for the      Solicitor General
District of Columbia                      425 Queen Street
400 Sixth Street, NW Washington, DC       Honolulu, HI 96813
20001                                     (808) 586-1360
(202) 724-9726                            kaliko.d.fernandes@hawaii.gov
Andrew.Mendrala@dc.gov
                                          Counsel for the State of Hawaiʻi
Counsel for the District of Columbia

                                          KWAME RAOUL
AARON M. FREY                             ATTORNEY GENERAL FOR THE STATE OF
ATTORNEY GENERAL FOR THE STATE OF         ILLINOIS
MAINE
                                          By: /s/ Elena S. Meth
By:/s/ Sarah A. Forster                   Cara Hendrickson*
Sarah A. Forster*                           Assistant Chief Deputy Attorney General
  Assistant Attorney General              Elena S. Meth*
Office of the Attorney General              Assistant Attorney General
6 State House Station                     Office of the Illinois Attorney General
Augusta, ME 04333-0006                    115 S. LaSalle St.
Tel.: 207-626-8800                        Chicago, IL 60603
Fax: 207-287-3145                         (773) 835-0182
Sarah.Forster@maine.gov                   Cara.Hendrickson@ilag.gov
                                          Elena.Meth@ilag.gov
Counsel for the State of Maine
                                          Counsel for the State of Illinois




                                          30
     Case 1:25-cv-02990-ER          Document 11    Filed 04/11/25     Page 36 of 38




ANTHONY G. BROWN                            ANDREA JOY CAMPBELL
ATTORNEY GENERAL FOR THE STATE OF           ATTORNEY GENERAL OF MASSACHUSETTS
MARYLAND
                                            By: /s/ David C. Kravitz
By: /s/ Keith M. Jamieson                   David C. Kravitz*
Elliott Schoen*                               State Solicitor
  Principal Counsel                         Katherine Dirks
  Assistant Attorney General                  Chief State Trial Counsel
Alan J. Dunklow*                            Office of the Attorney General
  Deputy Principal Counsel                  One Ashburton Place, 20th Floor
  Assistant Attorney General                Boston, MA 02108
Maryland State Department of Education      (617) 963-2427
Keith M. Jamieson*                          david.kravitz@mass.gov
  Assistant Attorney General
Federal Accountability Unit                 Counsel for the
Office of the Attorney General               Commonwealth of Massachusetts
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6960                              KEITH ELLISON
kjamieson@oag.state.md.us                   ATTORNEY GENERAL FOR THE STATE OF
                                            MINNESOTA
Counsel for the State of Maryland           By: /s/ Liz Kramer
                                            Liz Kramer*
                                              Solicitor General
DANA NESSEL                                 445 Minnesota Street, Suite 1400
ATTORNEY GENERAL OF MICHIGAN                St. Paul, Minnesota, 55101
                                            (651) 757-1010
By: /s/ Neil Giovanatti                     Liz.Kramer@ag.state.mn.us
Neil Giovanatti
BreAnna Listermann*                        Counsel for the State of Minnesota
  Assistant Attorneys General
Michigan Department of Attorney General
525 W. Ottawa                               AARON D. FORD
Lansing, MI 48909                           ATTORNEY GENERAL OF NEVADA
(517) 335-7603
GiovanattiN@michigan.gov                   By: /s/ Heidi Parry Stern
ListermannB@michigan.gov                   Heidi Parry Stern (Bar. No. 8873)
                                             Solicitor General
Counsel for the People of the State of     Office of the Nevada Attorney General
Michigan                                   1 State of Nevada Way, Ste. 100
                                           Las Vegas, NV 89119
                                           HStern@ag.nv.gov

                                            Counsel for the State of Nevada




                                           31
     Case 1:25-cv-02990-ER            Document 11   Filed 04/11/25      Page 37 of 38



MATTHEW J. PLATKIN                           RAÚL TORREZ
 ATTORNEY GENERAL OF NEW JERSEY              ATTORNEY GENERAL OF THE STATE OF NEW
                                             MEXICO
/s/ Lauren E. Van Driese
Lauren E. Van Driesen
Jessica L. Palmer                            /s/ Anjana Samant
Justine Longa*                               Anjana Samant*
  Deputy Attorneys General                     Deputy Counsel
Office of the Attorney General               New Mexico Department of Justice
124 Halsey Street, 5th Floor                 408 Galisteo Street
Newark, NJ 07101                             Santa Fe, NM 87501
(609) 696-5279
Lauren.VanDriesen@law.njoag.gov              asamant@nmdoj.gov
Jessica.Palmer@law.njoag.gov                 (505) 270-4332
Justine.Longa@law.njoag.gov
                                             Counsel for the State of New Mexico
Counsel for the State of New Jersey

                                             JENNIFER C. SELBER
DAN RAYFIELD                                   General Counsel
ATTORNEY GENERAL FOR THE STATE OF            Michael J. Fischer
OREGON                                         Executive Deputy General Counsel
By: /s/ Sara Van Loh
Sara Van Loh OSB #044398*                    By:/s/ Thomas P. Howell
  Senior Assistant Attorney General          Thomas P. Howell*
100 SW Market Street                           Deputy General Counsel
Portland, Oregon 97201                       Governor’s Office of General Counsel
Tel (971) 673-1880                           30 N. 3rd Street, Suite 200
Fax (971) 673-5000                           Harrisburg, PA 17101
Sara.VanLoh@doj.oregon.gov                   (717) 460-6786
                                             thowell@pa.gov
Attorneys for the State of Oregon
                                             Counsel for Governor Josh Shapiro,
                                             Commonwealth of Pennsylvania




                                             * Pro Hac Vice application to be filed




                                             32
       Case 1:25-cv-02990-ER          Document 11         Filed 04/11/25       Page 38 of 38




                                        CERTIFICATION

       I certify that, excluding the caption, table of contents, table of authorities, signature

block, and this certification, the foregoing Memorandum of Law contains 8683 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
       April 11, 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


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