Notice of Pendency of Other Actions — State of Michigan et al. v. DeVos (N.D. Cal., Doc. 80)

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A Notice of Pendency of Other Actions filed August 24, 2020 as Document 80 in State of Michigan, State of California, et al. v. Elisabeth D. DeVos and United States Department of Education, Case No. 3:20-cv-04478-JD, in the United States District Court for the Northern District of California, San Francisco Division. Pursuant to Local Civil Rule 3-13, and the Court's Order dated August 19, 2020, the parties list State of Washington v. DeVos, et al., 2:20-cv-01119, National Association for the Advancement of Colored People, et al., v. DeVos, et al., 1:20-cv-01996, and Council of Parent Attorneys and Advocates, Inc. v. DeVos, et al., No. 1:20-cv-02310. For each, Plaintiffs' statement and Defendants' statement address whether transfer under 28 U.S.C. § 1407 should be effected.

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“Notice of Pendency of Other Actions — State of Michigan et al. v. DeVos (N.D. Cal., Doc. 80).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/notice-other-state-of-michigan-et-al-v-devos-no-3-20-cv-04478-n-d-cal-b6bbfe0a33/, SHA-256 0d35ba83001d5b3e508aec4c9431a54201c158debae5bc58a041dd3a6f434eb4.

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Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 1 of 6

1 XAVIER BECERRA DANA NESSEL
Attorney General of California Attorney General of Michigan
2 MICHAEL NEWMAN FADWA A. HAMMOUD*
Senior Assistant Attorney General Solicitor General
3 SARAH E. BELTON TONI L. HARRIS*
Supervising Deputy Attorney General NEIL GIOVANATTI*
4 REBEKAH A. FRETZ Assistant Attorneys General
JAMES F. ZAHRADKA II P.O. Box 30758
5 GARRETT M. LINDSEY (SBN 293456) Lansing, MI 48909
Deputy Attorneys General Telephone: (517) 335-7603
6 300 South Spring Street, Suite 1702 E-mail: GiovanattiN@michigan.gov
Los Angeles, CA 90013 Attorneys for Plaintiff State of Michigan
7 Telephone: (213) 269-6402 *Appearing Pro Hac Vice
E-mail: Garrett.Lindsey@doj.ca.gov
8 Attorneys for Plaintiff State of California

9
IN THE UNITED STATES DISTRICT COURT
10
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
SAN FRANCISCO DIVISION
12

13
Case No. 3:20-cv-04478-JD
14 STATE OF MICHIGAN, STATE OF
CALIFORNIA, et al., NOTICE OF PENDENCY OF OTHER
15 ACTIONS
Plaintiffs,
16 Judge: Hon. James Donato
v. Trial Date: None set
17 Action Filed: July 7, 2020

18 ELISABETH D. DEVOS, in her official
capacity as the United States Secretary of
19 Education, and UNITED STATES
DEPARTMENT OF EDUCATION,
20
Defendants.
21

Notice of Pendency of Other Actions (3:20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 2 of 6

1 Pursuant to Local Civil Rule 3-13 and the Court’s Order, dated August 19, 2020, the parties

2 submit this Notice of Pendency of Other Actions.

3 1. State of Washington v. DeVos, et al., 2:20-cv-01119 (Western District of Washington)
4 a. Description and relation to the instant action: On July 20, 2020, the State of

5 Washington filed a lawsuit against Secretary DeVos and the U.S. Department of Education

6 (Department) in the United State District Court for the Western District of Washington.

7 Washington challenges the Department’s interim final rule of July 1, 2020, relating to the funding

8 of equitable services under section 18005 of the CARES Act. Washington seeks declaratory and

9 injunctive relief based on violations of the Administrative Procedure Act and various

10 constitutional provisions. On August 21, 2020, the United States District Court for the Western

11 District of Washington granted Washington’s motion for a preliminary injunction. See 2:20-cv-

12 1119-BJR, Doc. 54 (W.D.WA) (attached hereto as Exhibit A). Washington is not a plaintiff in

13 the case before this Court. The Washington case is related to the instant action because both

14 actions challenge the Department’s rule and interpretations of section 18005 of the CARES Act.

15 b. Transfer of the instant action should not be effected pursuant to 28 U.S.C.

16 § 1407 (Multi District Litigation Procedures).

17 Plaintiffs’ statement: Transfer of this proceeding to a different jurisdiction may

18 inconvenience the parties and witnesses, none of whom reside in Washington.

19 Coordination between the actions would not avoid conflicts, conserve resources, or

20 promote a just or efficient determination of the action pending before this Court. The

21 August 21, 2020 order from the Western District of Washington was granted without

22 briefing, argument, or evidence specific to the plaintiff jurisdictions in this action. If

23 the August 21, 2020 order does not apply equally to the plaintiffs in the instant action,

24 transfer and consolidation of this proceeding would delay the resolution of the instant

25 action. The parties have briefed, and the Court heard argument, on a preliminary

26 injunction motion, and immediate resolution of the preliminary injunction motion is

27 needed as described in the parties’ briefs.

28
1
Notice of Pendency of Other Actions (3:20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 3 of 6

1 Defendants’ statement: Transfer of this action would not be appropriate because this

2 case does not present disputed issues of fact capable of resolution in consolidated

3 proceedings. Because disposition of this case turns on pure questions of law, Multi-

4 District Litigation would not be appropriate and would not expedite adjudication of

5 the issues. Furthermore, it is defendants’ position that the August 21, 2020, order in

6 the Western District of Washington applies to the State of Washington only, the only

7 plaintiff seeking relief in that case.

8 2. National Association for the Advancement of Colored People, et al., v. DeVos, et al.,
1:20-cv-01996 (District Court for the District of Columbia)
9
a. Description and relation to the instant action: On July 22, 2020, the National
10
Association for the Advancement of Colored People (NAACP), a group of parents of minor
11
public school students, the Denver County School District, Pasadena Unified School District,
12
Stamford Public Schools, Dekalb County School District, and Broward County Public Schools
13
filed a lawsuit against Secretary DeVos and the Department in the United States District Court for
14
the District of the Columbia. The plaintiffs challenge the Department’s interim final rule of July
15
1, 2020, relating to the funding of services under section 18005 of the CARES Act. The plaintiffs
16
seek declaratory and injunctive relief based on violations of the Administrative Procedure Act and
17
various constitutional provisions. The NAACP and all other plaintiffs in the NAACP case are not
18
plaintiffs in the case before this Court, and NAACP and the group of plaintiff students are not a
19
direct recipient of emergency funding under sections 18002 or 18003 of the CARES Act at issue
20
in this case.
21
b. Transfer of the instant action should not be effected pursuant to 28 U.S.C.
22
§ 1407 (Multi District Litigation Procedures).
23
Plaintiffs’ statement: Given the more advanced procedural posture in this case (i.e.,
24
briefing has been completed and a hearing has been held on Plaintiffs’ motion for
25
preliminary injunction), and the fact that NAACP and other plaintiffs moved for a
26
preliminary injunction or partial summary judgment on August 11, 2020, following all
27
briefing for the motion for preliminary injunction before this Court, transfer would
28
2
Notice of Pendency of Other Actions (3:20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 4 of 6

1 unduly delay the instant case. Coordination between the actions would not avoid

2 conflicts, conserve resources, or promote a just or efficient determination of the action

3 pending before this Court.

4 Defendants’ statement: Transfer of this action would not be appropriate because this

5 case does not present disputed issues of fact capable of resolution in consolidated

6 proceedings. Because disposition of this case turns on pure questions of law, Multi-

7 District Litigation would not be appropriate and would not expedite adjudication of

8 the issues. The instant action would resolve the matter within the plaintiff

9 jurisdictions only and would not directly impact all plaintiffs in the NAACP action.

10 3. Council of Parent Attorneys and Advocates, Inc. v. DeVos, et al., No. 1:20-cv-02310
(United States District Court for the District of Maryland)
11
a. Description and relation to the instant action: On August 10, 2020, the Council
12
of Parent Attorneys and Advocates, Inc. (COPAA) filed a lawsuit against Secretary DeVos and
13
the Department in the United States District Court for the District of Maryland. The plaintiff
14
challenges the Department’s interim final rule of July 1, 2020, relating to the funding of services
15
under section 18005 of the CARES Act. The plaintiff seeks declaratory and injunctive relief
16
based on violations of the Administrative Procedure Act. The plaintiff does not raise
17
constitutional claims. COPAA is not a plaintiff in the case before this Court, and COPAA is not a
18
direct recipient of emergency funding under sections 18002 or 18003 of the CARES Act at issue
19
in this case.
20
b. Transfer of the instant action should not be effected pursuant to 28 U.S.C.
21
§ 1407 (Multi District Litigation Procedures).
22
Plaintiffs’ statement: Given the more advanced procedural posture in this case (i.e.,
23
briefing has been completed and a hearing has been held on Plaintiffs’ motion for
24
preliminary injunction), and the fact that COPAA has not moved for preliminary
25
injunction, transfer would unduly delay the instant case. Coordination between the
26
actions would not avoid conflicts, conserve resources, or promote a just or efficient
27
determination of the action pending before this Court.
28
3
Notice of Pendency of Other Actions (3:20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 5 of 6

1 Defendants’ statement: Transfer of this action would not be appropriate because this

2 case does not present disputed issues of fact capable of resolution in consolidated

3 proceedings. Because disposition of this case turns on pure questions of law, Multi-

4 District Litigation would not be appropriate and would not expedite adjudication of

5 the issues. The instant action would resolve the matter within the plaintiff jurisdictions

6 only and would not directly impact the plaintiffs in the COPAA action.

7
Dated: August 24, 2020 Respectfully submitted,
8

9 ETHAN P. DAVIS DANA NESSEL
Acting Assistant Attorney General Attorney General of Michigan
10 FADWA A. HAMMOUD*
DAVID M. MORRELL Solicitor General
11 Deputy Assistant Attorney General
/s/ Neil Giovanatti
12 JENNIFER D. RICKETTS
Director, Federal Programs Branch NEIL GIOVANATTI*
13 TONI L. HARRIS*
/s/ William K. Lane III Assistant Attorneys General
14 WILLIAM K. LANE III Attorneys for Plaintiff State of Michigan
(D.C. Bar #1034955) *Appearing Pro Hac Vice
15 Counsel, Civil Division
U.S. Department of Justice
16 950 Pennsylvania Ave., N.W. XAVIER BECERRA
Washington, D.C. 20530 Attorney General of California
17 (202) 305-7920 MICHAEL L. NEWMAN
william.lane2@usdoj.gov Senior Assistant Attorney General
18 SARAH E. BELTON
Supervising Deputy Attorney General
19 Attorneys for Defendants REBEKAH A. FRETZ
GARRETT M. LINDSEY
20 JAMES F. ZAHRADKA II
Deputy Attorneys General
21 Attorneys for Plaintiff State of California
22

28
4
Notice of Pendency of Other Actions (3:20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 80 Filed 08/24/20 Page 6 of 6

1 ATTESTATION OF SIGNATURES

2
I, Neil Giovanatti, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
3
District of California that concurrence in the filing of this document has been obtained from each
4
signatory hereto.
5
Dated: August 24, 2020
6 /s/ Neil Giovanatti

7 NEIL GIOVANATTI
Assistant Attorneys General
8 Attorney for Plaintiffs

28
5
Notice of Pendency of Other Actions (3:20-cv-4478-JD)

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