Full text
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 2 of 38
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Rescinded the Extensions and Declared Plaintiffs’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
i
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 3 of 38
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 4 of 38
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
iii
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 5 of 38
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
iv
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 6 of 38
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.
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 7 of 38
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.
2
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 8 of 38
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.
3
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 9 of 38
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
4
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 10 of 38
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.
5
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 11 of 38
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.
6
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 12 of 38
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.
7
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 13 of 38
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.
8
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 14 of 38
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.
9
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 15 of 38
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 18 of 38
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 21 of 38
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 23 of 38
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
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 28 of 38
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
24
Case 1:25-cv-02990-ER Document 11 Filed 04/11/25 Page 30 of 38
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