Order on Motion for Preliminary Injunction, Noerand v. DeVos, No. 1:20-cv-11271 (D. Mass.), Doc. 16 (July 24, 2020)

Summary

Order on Motion for Preliminary Injunction (Doc. No. 2) in Farah Noerand v. Elisabeth P. DeVos and the United States Department of Education, Civil No. 20-11271-LTS, U.S. District Court for the District of Massachusetts, dated July 24, 2020. The Court states that the word "students" in the CARES Act has a clear, unambiguous meaning that encompasses persons enrolled in institutions of higher education without regard to immigration or citizenship status. It allows the motion in part, so that the Secretary of Education and the Department of Education may not deny Noerand CARES Act funding on the grounds that TPS status renders Noerand ineligible for Title IV aid. It sets a supplemental memo for July 31, 2020, a reply for August 5, 2020, and a joint status report for August 7, 2020.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Order on Motion for Preliminary Injunction, Noerand v. DeVos, No. 1:20-cv-11271 (D. Mass.), Doc. 16 (July 24, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/order-on-motion-for-preliminary-injunction-noerand-v-devos-no-1-20-cv-c12cd9caaf/, SHA-256 554f0abce531570ed5e685215d97bed85cee3355494d57bbd1780296b81886bf.

Full text

Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

____________________________________
)
FARAH NOERAND, )
)
Plaintiff, )
)
v. ) Civil No. 20-11271-LTS
)
ELISABETH P. DEVOS, in her official )
Capacity as Secretary of the United States )
Department of Education, and THE )
UNITED STATES DEPARTMENT OF )
EDUCATION )
)
Defendants. )
____________________________________)

ORDER ON MOTION FOR PRELIMINARY INJUNCTION (Doc. No. 2)

July 24, 2020

SOROKIN, J.,
For the reasons set forth below, the Motion filed by Plaintiff for Injunctive Relief (Doc.

No. 2)1 is ALLOWED IN PART. The parties shall submit the further memoranda and status

report as ordered below.

I. DISCUSSION

A. The Word “students” in the CARES Act Has A Clear, Unambiguous Meaning

In response to the coronavirus emergency, Congress passed the Coronavirus Aid, Relief,

and Economic Security Act (“CARES Act” or “Act”), Pub. L. No. 116-136, 134 Stat. 281 (2020),

which, inter alia, appropriates billions of dollars to the Department of Education (“DOE” or

“Department”) for emergency relief to institutions of higher education (“IHEs”). CARES Act

1
Citations to “Doc. No. __” reference documents appearing on the court’s electronic docketing
system; pincites are to the page numbers in the ECF header.
1
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 2 of 16

§ 18004(a). In creating the Higher Education Economic Relief Fund (“HEERF”) Congress

directed that schools may use half of the funding for the school’s own needs, subject to various

limitations not relevant here, and required IHEs to distribute the other half of the funding to the

school’s “students” for certain defined types of assistance. For purposes of the pending motion,

the parties agree that the Plaintiff, Farah Noerand (“Plaintiff”), is a student at an IHE, Bunker Hill

Community College (“BHCC”). The parties dispute whether Noerand is a “student” within the

meaning of the CARES Act. This dispute turns not on a distinction between citizens and non-

citizens, for the Department of Education approves the distribution of funds under the CARES Act

to certain students who are not citizens. Rather, the dispute concerns the technical meaning of the

word “students” and whether it encompasses, inter alia, non-citizens such as Noerand.

Noerand came to the United States at age fourteen in the aftermath of the devastating

January 12, 2010 earthquake in Haiti for surgery to repairs burns she suffered in an electrical fire.

She has remained in the United States since that time. Currently, she enjoys temporary protected

status (“TPS”). Plaintiff entered the United States lawfully and her presence in the United States

has always been and remains authorized by federal law.

The Department has applied the CARES Act to prohibit IHEs (i.e., colleges including

BHCC) from distributing CARES Act funding to students such as Noerand enjoying TPS. The

Department reaches this result by interpreting “students” in the CARES Act to mean only students

eligible for funding under Title IV of the Higher Education Act of 1965, which awards funds to

citizens as well as to some non-citizens such as green card holders. Doc. No. 10 at 2-3; 20 U.S.C.

§ 1091(a)(5). Persons with TPS or certain other immigration statuses are not eligible for Title IV

funding or, under DOE’s interpretation, CARES Act funding.

2
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 3 of 16

Because the parties dispute the meaning and clarity of the relevant provision of the CARES

Act, the Court starts with the text of the statute. Section 18004 of the Act, which establishes

HEERF, provides, in relevant part:

(a) IN GENERAL.— The Secretary shall allocate funding under this section as
follows:

(1) 90 percent to each institution of higher education to prevent, prepare for,
and respond to coronavirus, by apportioning it—

(A) 75 percent according to the relative share of full-time equivalent
enrollment of Federal Pell Grant recipients who are not exclusively enrolled
in distance education courses prior to the coronavirus emergency; and

(B) 25 percent according to the relative share of full-time equivalent
enrollment of students who were not Federal Pell Grant recipients who are
not exclusively enrolled in distance education courses prior to the
coronavirus emergency.

....

(b) DISTRIBUTION.— The funds made available to each institution under
subsection (a)(1) shall be distributed by the Secretary using the same systems as
the Secretary otherwise distributes funding to each institution under title IV of the
Higher Education Act of 1965 (20 U.S.C. 1001 et seq.).

(c) USES OF FUNDS.— Except as otherwise specified in subsection (a), an
institution of higher education receiving funds under this section may use the funds
received to cover any costs associated with significant changes to the delivery of
instruction due to the coronavirus, so long as such costs do not include payment to
contractors for the provision of pre-enrollment recruitment activities; endowments;
or capital outlays associated with facilities related to athletics, sectarian instruction,
or religious worship. Institutions of higher education shall use no less than 50
percent of such funds to provide emergency financial aid grants to students for
expenses related to the disruption of campus operations due to coronavirus
(including eligible expenses under a student’s cost of attendance, such as food,
housing, course materials, technology, health care, and child care).

CARES Act § 18004.

In interpreting a statute, courts first look to “the ordinary public meaning of its terms at the

time of its enactment. After all, only the words on the page constitute the law adopted by Congress

3
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 4 of 16

and approved by the President.” Bostock v. Clayton Cty., 140 S. Ct. 1731, 1738 (2020). If a

statute’s meaning is plain, the reviewing court “must give effect to the unambiguously expressed

intent of Congress.” Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 843 (1984). When “the intent of Congress is clear, that is the end of the matter.” Id. at 842.

The word “students” has a plain and ordinary meaning well understood in 2020 by the

drafters of the CARES ACT, and the text of the statute demonstrates that the term “students”

therein unambiguously carries its ordinary meaning. That meaning, “one who attends a school,”

encompasses persons enrolled in institutions of higher education without regard to their

immigration or citizenship status. See “student,” Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/student (last accessed July 23, 2020). Of course,

Congress included no definition of “students” in the CARES Act, but no such definition was

necessary for a commonly understood word used in its ordinary sense. Nor has the Department

suggested that the word “students” is a term of art such that the Court should presume that

Congress incorporated the term of art definition of the word by implication in the Act. See, e.g.,

In re Pharm. Indus. Average Wholesale Price Litig., 582 F.3d 156, 168 (1st Cir. 2009) (“‘[W]here

a statutory or regulatory term is a technical term of art, defined more appropriately by reference to

a particular industry usage than by the usual tools of statutory construction,’ we will employ that

industry usage.”) (quoting United States v. Lachman, 387 F.3d 42, 53 (1st Cir. 2004)). In addition,

nowhere in the Act does Congress expressly limit the word “students” to students qualifying under

the Higher Education Act (or any other statute).

Second, Congress’s use of the word “students” in Section 18004 unambiguously evinces

an intent to encompass all students without regard to their immigration status or eligibility for Title

IV funding. In Section 18004(a)(1) of the Act, Congress mandated the formula the Secretary must

4
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 5 of 16

use in allocating the appropriated funds among the IHEs. This formula requires the Secretary to

award “25 percent according to the relative share of full-time equivalent enrollment of students

who were not Federal Pell Grant recipients,” and “75 percent according to the relative share of

full-time equivalent enrollment of Federal Pell Grant recipients.” CARES Act §§ 18004(a)(1)(B),

(A). Therefore, the formula requires the Secretary to allocate funds based, in part, on the number

of TPS or other non-citizen students at an IHE. That Congress based its statutory allocation of

funds—for both institutions and students—on a formula counting all students without regard to

eligibility under Title IV (whether based on financial need or immigration status) demonstrates

that Congress employed the word “students” in accordance with its ordinary meaning. The

distinction it drew in the formula evinces Congress’s understanding that it was using the word

“students” in its ordinary sense thereby encompassing students ineligible for Title IV funding.

Third, when Congress restricted the reach of the word “students” elsewhere in the CARES

Act, it did so expressly, not by changing the meaning of the word “students,” but by attaching

further express limitations. In calculating the allocation to each IHE, for example, the HEERF

program expressly excluded students who were “exclusively enrolled in distance education courses

prior to the coronavirus emergency.” CARES Act §§ 18004(a)(1)(A), (B). The Act also limits

certain payments to “students” to those students “eligible for work-study.” See id. § 3505(a). An

“affected work-study student” is defined as “a student enrolled at an eligible institution

participating in the program under part C of title IV of the Higher Education Act of 1965.” Id.

If, as the Department suggests, “students” within the CARES Act includes only persons

otherwise eligible under Title IV of the Higher Education Act, then these textual restrictions

5
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 6 of 16

imposed by Congress are surplusage. 2 Not only is this a disfavored result, see, e.g., United States

v. Ven-Fuel, Inc., 758 F.2d 741, 751–52 (1st Cir. 1985) (“All words and provisions of statutes are

intended to have meaning and are to be given effect, and no construction should be adopted which

would render statutory words or phrases meaningless, redundant or superfluous.”), but the

Supreme Court has charged courts to “‘give effect, if possible, to every clause and word of a

statute.’” Advocate Health Care Network v. Stapleton, 137 S. Ct. 1652, 1659 (2017) (quoting

Williams v. Taylor, 529 U.S. 362, 404 (2000)).

Moreover, it is a general presumption that “[w]hen Congress includes particular language

in one section of a statute but omits it in another, Congress intended a difference in meaning.”

Me. Cmty Health Options v. United States, 140 S. Ct. 1308, 1323 (2020) (internal quotation marks

and citations omitted). When Congress incorporated other terms from Title IV into the CARES

Act, it did so expressly. See, e.g., CARES Act § 18004(a)(2) (defining “cost of attendance” “as

defined under section 472 of the Higher Education Act.”).

Fourth, other provisions of the CARES Act use the term “students” in its plain and ordinary

sense to encompass all students without regard to citizenship or type of immigration status. For

example, Section 753 of the Act establishes a “Geriatrics Workforce Enhancement

Program” meant to support the training of health professionals working in geriatrics.

Id. § 753(a)(2)(A). Section 753 provides in relevant part that “[a]ctivities conducted by a program

under this section may include . . . [p]roviding education on Alzheimer’s disease and related

dementias to . . . health professions students, faculty, and providers.” Id. § 753(a)(2)(B)(iv). This

provision is not sensibly read to exclude students ineligible for Title IV funding. Likewise, the

2
This is so whether the statute unambiguously excludes persons not eligible under Title IV, a
position the government has not advanced, or is ambiguous and thus subject to construction by
DOE.
6
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 7 of 16

Secretary of Health is permitted to “give priority to any program that . . . provides training to

integrate geriatric care into other specialties across care settings, including . . . students from all

health professions.” Id. § 753(a)(5)(A)(iii)(II).

The same problem arises when other Sections of the Act pertaining to education are read

in the more restrictive manner advanced by the Department. Nowhere is this clearer than in

Section 18002, which establishes the Governor’s Emergency Education Relief Fund (“GEERF”).

The GEERF provides Emergency Education Relief grants “to the Governor of each State with an

approved application,” to be used, inter alia, to “provide emergency support through grants to

institutions of higher education serving students within the State that the Governor determines

have been most significantly impacted by coronavirus. . .” Id. §§ 18002(a), (c)(2) (emphasis

added). If “students” meant only “Title IV eligible” students each time it is used throughout the

Act, then an IHE “serving” either noncitizen students, even those lawfully present in the United

States, or students not receiving Title IV aid, are perforce excluded from receipt of these grants. As

the GEERF is also available to elementary and secondary education institutions—institutions

which by definition are not included in Title IV’s eligibility standards—as well as other “education

related entit[ies,]” such a reading of the statute would render these provisions non-sensical. Id.

§§ 18002(b), (c).

In short, to read these provisions as limited to students eligible under Title IV would lead

to absurd results. See United States v. Turkette, 452 U.S. 576, 580 (1981) (“absurd results are to

be avoided”); see also Dep’t of Revenue of Or. v. ACF Indus., 510 U.S. 332, 342 (1994) (The

“normal rule of statutory construction [is] that identical words used in different parts of the same

act are intended to have the same meaning.”) (internal quotation marks and citations omitted).

7
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 8 of 16

Fifth, when Congress excluded certain categories of non-citizens in the CARES Act, it did

so expressly. Section 2201 provides for a one-time “Recovery Rebate” of $1,200 for “eligible

individuals” earning less than $75,000 per year. CARES Act § 2201. Nonresident aliens are

specifically excluded from this benefit, while qualifying resident aliens must meet one of two

narrow exceptions to be eligible.3 Id. Plainly, Congress understood how to exclude non-citizens

and establish specific eligibility criteria for funding made available in the CARES Act. Similarly,

Section 1102 of the Act, which established the Paycheck Protection Program (“PPP”), provides

loans for small businesses to cover payroll costs and other enumerated operating expenses such as

rent and utilities. Id. § 1102(a)(2)(36)(F)(i). However, the Act makes clear that that PPP loans

may not be used to remunerate “an employee whose principal place of residence is outside of the

United States.” Id. § 1102(a)(2)(36)(II)(cc). That Congress spoke with clarity elsewhere in the

Act in limiting eligibility for certain programs and benefits and yet did not qualify the word

“students” in Section 18004 is strong evidence that it meant not to do so.

Finally, both of the courts that have to date interpreted Section 18004 of the CARES Act

have also concluded that the meaning of the word “students” is unambiguous. See Washington v.

Devos, No. 20-cv-0182-TOR, 2020 U.S. Dist. LEXIS 103388, at *33-34 (E.D. Wash. June 12,

3
The two tests used to determine eligibility— the “green card test” and the “substantial presence
test”—are found in the Internal Revenue Code. See 26 U.S.C. The green card test is met by being
issued an alien registration card, Form I-551 by U.S. Citizenship and Immigration Services
(“USCIS”). See 26 C.F.R. § 301.7701(b)-1; see also Alien Residency–Green Card Test, IRS.GOV,
https://www.irs.gov/individuals/international-taxpayers/alien-residency-green-card-test (last
updated Feb. 20, 2020). The substantial presence test requires an individual to be physically
present in the United States on at least 31 days in the current year, and 183 days during the 3-year
period that includes the current year and the 2 years immediately preceding it, counting all the
days in the current year, one-third of the days in the previous year, and one sixth of the days in the
year before that. See 26 U.S.C. § 7701(b)(3); see also Substantial Presence Test, IRS.GOV,
https://www.irs.gov/individuals/international-taxpayers/substantial-presence-test (last updated
Jan. 15, 2020).
8
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 9 of 16

2020) (“[T]here is no ambiguity for which the Defendants can interpret the CARES Act to be

limited only to those individuals eligible for Title IV assistance under the HEA.”); Oakley v.

Devos, No. 20-cv-03215-YGR, 2020 U.S. Dist. LEXIS 106092, at *26 (N.D. Cal. June 17, 2020)

(“The Court interprets the absence of any explicit reference to title IV eligibility requirements or

related grant of authority to the Secretary in Section 18004 as intentional.”).

One more point bears mention. The Department points to another portion of the text of the

CARES Act that it contends supports its assertion that the statute is ambiguous and that its reading

of the statute is a reasonable one, entitled to deference. Doc. No. 10 at 2. The Act directs the

Secretary to use the “same systems” for distribution of HEERF funding that she uses for the

distribution of funding under Title IV. CARES Act § 18004(b). But that is of no moment.

Congress merely required the Secretary to use her existing administrative and electronic apparatus,

thereby (presumably) simplifying and accelerating the distribution of aid. Nothing in this “same

systems” provision implies the imposition of an eligibility requirement on the funding so

distributed, or implicitly incorporates Title IV’s eligibility requirements, or renders an otherwise

plain and clear statute ambiguous. Accord Oakley, 2020 U.S. Dist. LEXIS 106092, at *24 (“The

statutory provision cited in the CARES Act which describes those ‘systems’ only refers to

operational systems used for administration of funds, not eligibility requirements.”); Washington

v. Devos, 2020 U.S. Dist. LEXIS 103388, at *27.

Moreover, when Congress has used the term “systems” in the past with reference to Title

IV, it has done so in a way that refers to administrative systems with no mention of eligibility

requirements. For example, 20 U.S.C. § 1018, which establishes a Performance-Based

Organization “responsible for managing the administrative and oversight functions supporting the

programs authorized under [Title IV,]” makes reference to “the delivery system of student aid

9
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 10 of 16

under [Title IV]. Id. §§ 1018(a), (c)(3). Likewise 34 C.F.R. § 668.16, which governs standards

of administrative capability for IHEs participating in Title IV programs, enumerates a list of factors

by which the Secretary determines an IHE’s capability of delivering Title IV aid, one of which is

“[t]he financial aid delivery system used by the institution.” 34 C.F.R. § 668.16(b)(2)(iv). Absent

clear guidance from Congress to the contrary, such repeated references to “aid delivery systems”

suggest only that the term “systems,” as used throughout the relevant statutes and regulations, as

well as within the CARES Act itself, is meant to refer to operational systems used for administering

and delivering aid from the Department to participating IHEs.

The Department counters that “the use of the words ‘financial aid’ to qualify the word

‘grants’” in the CARES Act suggests that Congress intended to attach Title IV eligibility to

HEERF funds. Doc. No. 10 at 12. In support of this, the Department argues that because Congress

in Section 18004 defined “cost of attendance” as having the same meaning given the term “in

section 472 of the Higher Education Act,” Congress must have meant to import Title IV’s

eligibility standards into the CARES Act or at least that the language renders the statute ambiguous

on this point. Id. (citing CARES Act § 18004(a)(2)).

This argument quickly falters. Title IV’s definition of “cost of attendance” refers simply

to the tuition and fees accrued by a student attending an educational institution and makes no

mention of a students’ immigration status or Title IV eligibility. See 20 U.S.C. § 1087ll. In short,

there is nothing to suggest that Congress meant for this reference to incorporate eligibility

requirements found elsewhere in the code and wholly unrelated to the cost of attendance. That the

Department would prefer to limit CARES Act funds to students eligible under Title IV whether

for administrative convenience, policy reasons, or otherwise must yield to the unambiguous statute

enacted by Congress.

10
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 11 of 16

For the foregoing reasons, the Court determines that the CARES Act unambiguously

authorized the provision of funds under Section 18004 to students without regard to their

immigration status, i.e., without regard to whether the student is eligible for Title IV financial aid,

and rejects the Department’s contention that the statute is ambiguous on this point. In so

construing the CARES Act, the Court has considered the provisions of 8 U.S.C. § 1611 (described

below), but concludes that the terms of that statute, even combined with the Department’s other

arguments, are insufficient to render ambiguous the clear commands set forth in the CARES Act.

B. Section 1611 Does Not Bar Relief to the Plaintiff

Alternatively, the Department contends that Plaintiff’s claim fails under another federal

statute. Section 1611 of Title 8 provides:

(a) In general

Notwithstanding any other provision of law and except as provided in subsection
(b), an alien who is not a qualified alien (as defined in section 1641 of this title) is
not eligible for any Federal public benefit (as defined in subsection (c)).

....

(1) Except as provided in paragraph (2), for purposes of this chapter the term
“Federal public benefit” means—

(A) any grant, contract, loan, professional license, or commercial license
provided by an agency of the United States or by appropriated funds of the
United States; and

(B) any retirement, welfare, health, disability, public or assisted housing,
postsecondary education, food assistance, unemployment benefit, or any other
similar benefit for which payments or assistance are provided to an individual,
household, or family eligibility unit by an agency of the United States or by
appropriated funds of the United States.

11
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 12 of 16

(2) Such term shall not apply—

(A) to any contract, professional license, or commercial license for a
nonimmigrant whose visa for entry is related to such employment in the United
States, or to a citizen of a freely associated state, if section 141 of the applicable
compact of free association approved in Public Law 99-239 or 99-658 (or a
successor provision) is in effect;

(B) with respect to benefits for an alien who as a work authorized nonimmigrant
or as an alien lawfully admitted for permanent residence under the Immigration
and Nationality Act [8 U.S.C. 1101 et seq.] qualified for such benefits and for
whom the United States under reciprocal treaty agreements is required to pay
benefits, as determined by the Attorney General, after consultation with the
Secretary of State; or

(C) to the issuance of a professional license to, or the renewal of a professional
license by, a foreign national not physically present in the United States.

8 U.S.C. § 1611(a), (c).

The funds distributed to students under HEERF of the CARES Act appear to fit

comfortably within the definition of “federal public benefit.” They are “grants” or “postsecondary

education” benefits paid for “by appropriated funds.” Although Section 1611 does not limit federal

benefits to citizens, Noerand does not allege that she is a “qualified alien” within the meaning of

Section 1611. Despite the Department’s contention that this ends the matter, Doc. No. 10 at 6-10,

it does not.

Plaintiff argues that the exception to Section 1611 provided in 8 U.S.C. § 1611(b)(1)(B),

which reaches “short-term, non-cash, in-kind emergency disaster relief,” encompass the CARES

Act relief at issue in this case. Id. at 10. Plaintiff makes a strong argument that the relief provided

pursuant to HEERF is “short-term emergency disaster relief.” See generally Doc. No. 12.

Therefore, the parties’ dispute, at least for now, centers on whether the relief qualifies as “in-kind,

non-cash” relief. The present briefing touches, at best, only minimally on the meaning of this

exception. Thus, at this preliminary stage, the Court declines to construe the exception and instead

12
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 13 of 16

assumes, without deciding, that the exception does not reach the relief at issue in this case. Thus,

standing alone, Section 1611 would prohibit Plaintiff from receiving the relief requested.

However, Section 1611 does not stand alone; rather the Court must reconcile it with the

CARES Act. The canons of statutory construction readily explain how to reconcile two seemingly

conflicting statutes. As the Supreme Court has explained, “it is a commonplace of statutory

construction that the specific governs the general.” Morales v. TWA, 504 U.S. 374, 384 (1992).

Section 18004 of the CARES Act is a specific statutory enactment in which Congress

unambiguously directed certain aid to a plainly defined group of people. In these circumstances,

to the extent that the CARES Act directs a federal public benefit, it constitutes a statutory exception

to Section 1611’s general denial of federal public benefits. In light of this conclusion, the Court

rejects the Department’s twin arguments that Section 1611 bars relief and that Noerand lacks

standing, see Doc. No. 10 at 6, for the standing contention relies entirely on the application of

Section 1611.

The Department argues that making HEERF benefits available to Plaintiff would constitute

an implied repeal of Section 1611, which is a disfavored approach. See, e.g., Morton v. Mancari,

417 U.S. 535, 549 (1974) (“[R]epeals by implication are not favored.”) (internal quotation marks

and citations omitted). Not so. During the hearing on this motion, the Department invoked United

States v. Arif, 897 F.3d 1 (1st Cir. 2018) in support of its position. That case is inapposite for it

addressed an implied repeal argument, not a conflict between statutes. There, a criminal defendant

contended that an (arguably) later statute enacting criminal penalties impliedly repealed the earlier

wire fraud statute insofar as the wire fraud statute also criminalized defendant’s actions. See Arif,

897 F.3d at 6-8. Just as Justice Scalia’s analysis cited by the Circuit explains its resolution of that

matter, id. at 5 (“A steady adherence to [the implied repeal doctrine] is important, primarily to

13
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 14 of 16

facilitate not the task of judging but the task of legislating.”) (internal quotation marks and citation

omitted), so too does Justice Scalia’s analysis explain that when, as here, Congress enacts an

unambiguous statute granting relief to a group of persons, the Members of Congress should not be

understood to have voted on the legislation in question by engaging in a “blind gamesmanship” to

estimate the likelihood a court will later hold the legislation to have effected a partial repeal of

some prior general law, or instead decline to enforce fully a statute as enacted, United States v.

Hansen, 772 F.2d 940, 944 (D.C. Cir. 1985) (Scalia, J.). Rather, Congress can safely rely on the

canons applied above to privilege the later specific statute, within its terms, over the older, more

general, statute.

C. Plaintiff Has Met Her Burden to Obtain an Injunction

In light of the foregoing interpretations of the relevant statutes, the Court turns to Noerand’s

pending motion for a preliminary injunction. Doc. No. 2. Plaintiff bears the burden of establishing

each of the four elements of the familiar test for such relief. See Esso Std. Oil Co. v. Monroig-

Zayas, 445 F.3d 13, 18 (1st Cir. 2006) (“The party seeking the preliminary injunction bears the

burden of establishing” entitlement to the injunction). In adjudicating a motion for a preliminary

injunction, the Court must weigh four factors: “(1) the plaintiff’s likelihood of success on the

merits; (2) the potential for irreparable harm in the absence of an injunction; (3) whether issuing

an injunction will burden the defendants less than denying an injunction would burden the

plaintiffs; and (4) the effect, if any, on the public interest.” United States v. Weikert, 504 F.3d 1,

5 (1st Cir. 2007). Though the Court must consider each of these factors, the most important is “the

movant’s likelihood of success on the merits.” Borinquen Biscuit Corp. v. M.V. Trading Corp.,

443 F.3d 112, 115 (1st Cir. 2006).

14
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 15 of 16

Here, Plaintiff Noerand has demonstrated a likelihood of success on the merits. In these

circumstances, the public interest and balance of the equities favors granting relief as does the

obvious risk of irreparable harm to Noerand in the absence of relief. 4

II. CONCLUSION

For the foregoing reasons, the Court, preliminarily, rejects the Secretary’s interpretation of

the CARES Act, determines that the CARES Act directs the distribution of funds to students of

any immigration status (e.g., green card holders, TPS recipients, etc.) and ALLOWS IN PART the

Motion for a Preliminary Injunction (Doc. No. 2) to the extent that the Secretary of Education and

the Department of Education, including their agents and employees (which includes Bunker Hill

Community College as well as BHCC’s employees and agents), may not deny Noerand CARES

Act funding on the grounds that her TPS status renders her ineligible for Title IV aid.

Plaintiff requests that the Court’s injunction should go further. She argues that at issue in

this case is the Department’s Interim Rule embodying the Department’s interpretation of the

CARES Act and that, if she prevails in this case, the final judgment under the APA will set aside

the application of this Interim Rule in Massachusetts. Because this issue was not fully developed

in the papers, the Court believes further briefing would be of assistance and fair also to the parties.

Thus, by Friday July 31, 2020, Defendant may file a supplemental memo not to exceed ten

pages explaining why the Court’s Order should reach no further than its present scope and

addressing in particular the Plaintiff’s contention noted above. Plaintiff may file a reply, not to

exceed seven pages, by Wednesday August 5, 2020. No later than Friday August 7, 2020, the

4
Notably, the entire point of the CARES Act was to grant emergency relief to a range of different
persons to avoid the irreparable harm otherwise occasioned by the coronavirus.
15
Case 1:20-cv-11271-LTS Document 16 Filed 07/24/20 Page 16 of 16

parties shall submit a joint status report setting forth their joint or separate positions for a schedule

to govern the remainder of this case.

SO ORDERED.

/s/ Leo T. Sorokin
Leo T. Sorokin
United States District Judge

File and source

File: 16-order-on-motion-for-preliminary-injunction.pdf
Size: 135,324 bytes
SHA-256: 554f0abce531570ed5e685215d97bed85cee3355494d57bbd1780296b81886bf
Our copy: 16-order-on-motion-for-preliminary-injunction.pdf
Original: storage.courtlistener.com