Motion for Partial Summary Judgment, State of Washington v. DeVos, No. 2:20-cv-00182 (E.D. Wash.), Doc. 37
Summary
Plaintiff State of Washington's Motion for Partial Summary Judgment in State of Washington v. Betsy DeVos and the United States Department of Education, No. 2:20-cv-00182-TOR, ECF No. 37, Eastern District of Washington, filed June 29, 2020, noted for July 27, 2020. Washington argues that the Department lacks statutory authority to interpret PRWORA, that PRWORA does not apply to one-time emergency grants, and that the text, structure, and purpose of the CARES Act preclude the Department's position that PRWORA prevents institutions from distributing emergency grant funds to noncitizens. It states that the CARES Act appropriated approximately $14 billion for the Higher Education Emergency Relief Fund and asks the Court to grant the motion. The motion is signed /s/ Spencer W. Coates, Assistant Attorney General.
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“Motion for Partial Summary Judgment, State of Washington v. DeVos, No. 2:20-cv-00182 (E.D. Wash.), Doc. 37.”
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Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.721 Page 1 of 28
1 ROBERT W. FERGUSON
Attorney General
2
SPENCER W. COATES, WSBA #49683
3 R. JULY SIMPSON, WSBA #45869
JEFFREY T. SPRUNG, WSBA #23607
4 PAUL M. CRISALLI, WSBA #40681
Assistant Attorneys General
5 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
6 (206) 464-7744
7 UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
8 AT SPOKANE
9 STATE OF WASHINGTON, NO. 2:20-cv-00182-TOR
10 Plaintiff, PLAINTIFF STATE OF
WASHINGTON’S MOTION
11 v. FOR PARTIAL SUMMARY
JUDGMENT
12 BETSY DeVOS, in her official
capacity as Secretary of the United NOTED FOR: JULY 27, 2020
13 States Department of Education, and With Telephonic Oral Argument:
the UNITED STATES 11:00 a.m. 1
14 DEPARTMENT OF EDUCATION, a
federal agency,
15
Defendants.
16
17
18
19
20 1
On June 24, 2020, Washington moved for an expedited hearing on this
21 motion, which would allow the hearing to take place on July 27, 2020, at
22 11:00 a.m. The Court has not yet ruled on this motion.
PLAINTIFF’S MOTION FOR ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.722 Page 2 of 28
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................... 1
3 II. STATUTORY AND FACTUAL BACKGROUND ........................... 2
4 III. ARGUMENT....................................................................................... 6
5 A. Standard of Review ....................................................................... 6
6 B. The Department Has No Authority to Enforce PRWORA or to
Impose Eligibility Restrictions on HEERF Funds ........................ 7
7
C. PRWORA Does Not Prevent Institutions From Distributing
8 HEERF Funds to Non-Citizens ..................................................... 9
9 1. HEERF emergency student grants are not “federal public
benefits” .................................................................................. 9
10
2. PRWORA’s “notwithstanding” clause does not mean
11 PRWORA automatically applies to HEERF Funds ............. 15
12 IV. CONCLUSION ................................................................................. 20
13
14
15
16
17
18
19
20
21
22
PLAINTIFF’S MOTION FOR i ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.723 Page 3 of 28
1 TABLE OF AUTHORITES
2 Cases
3 Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984) ......................................................................................6, 8
4
Citizens to Pres. Overton Park, Inc. v. Volpe,
5 401 U.S. 402 (1971) .......................................................................................... 6
6 City of Arlington, Tex. v. F.C.C.,
569 U.S. 290 (2013) .......................................................................................... 6
7
City of Los Angeles v. Barr,
8 941 F.3d 931 (9th Cir. 2019)........................................................................... 17
9 Conn. Nat’l Bank v. Germain,
503 U.S. 249 (1992) ........................................................................................20
10
FDA v. Brown & Williamson Tobacco Corp.,
11 529 U.S. 120 (2000) ........................................................................................20
12 Gonzales v. Oregon,
546 U.S. 243 (2006) .......................................................................................... 6
13
Gozlon-Peretz v. United States,
14 498 U.S. 395 (1991) ........................................................................................18
15 Kucana v. Holder,
558 U.S. 233 (2010) ........................................................................................18
16
La. Pub. Serv. Comm’n v. F.C.C.,
17 476 U.S. 355 (1986) .......................................................................................... 6
18 Ledezma-Galicia v. Holder,
636 F.3d 1059 (9th Cir. 2010)......................................................................... 16
19
Oakley v. Devos,
20 No. 20-cv-03215-YGR, 2020 WL 3268661 (N.D. Cal.
June 17, 2020) ...................................................................................4, 7, 14, 19
21
Rural Alaska Cmty. Action Program v. Smith,
22 847 F.2d 535 (9th Cir. 1988)........................................................................... 14
PLAINTIFF’S MOTION FOR ii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019)............................................................................. 6
2
United States v. Juvenile Male,
3 670 F.3d 999 (9th Cir. 2012)........................................................................... 19
4 Statutes
5 5 U.S.C. § 706(2)(A) (2020)................................................................................. 6
6 5 U.S.C. § 706(2)(C) (2020) ................................................................................. 6
7 5 U.S.C. § 706(2)(D) (2020)................................................................................. 6
8 8 U.S.C. § 1601(6) ..............................................................................................19
9 8 U.S.C. § 1611...........................................................................................1, 4, 16
10 8 U.S.C. § 1611(a) ..........................................................................................5, 13
11 8 U.S.C. § 1611(b) (2020) ................................................................................ 4, 9
12 8 U.S.C. § 1611(c) (2020) ................................................................................ 4, 9
13 8 U.S.C. § 1611(c)(1) (2020)................................................................................ 9
14 8 U.S.C. § 1611(c)(2) (2020)............................................................................ 4, 9
15 8 U.S.C. § 1614 (2020) ......................................................................................... 8
16 8 U.S.C. § 1642(a)(1) (2020).............................................................................. 10
17 8 U.S.C. § 1642(a)(2) (2020).............................................................................. 10
18 20 U.S.C. § 1091(a)(5) (2020).............................................................................. 3
19 42 U.S.C. § 701...................................................................................................12
20 42 U.S.C. §§ 5103 et seq. ...................................................................................13
21 42 U.S.C. §§ 6861 et seq. (2020)........................................................................ 12
22 H.R. Rep. No. 104-651 (1996) ........................................................................... 19
PLAINTIFF’S MOTION FOR iii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 Pub. L. No. 104–193, 110 Stat. 2105 (Aug. 22, 1996)......................................... 4
2 Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020)............................................ 2
3 Pub. L. No. 116-136, 134 Stat. 281 § 1102(a)(2)(36)(A) (Mar. 27, 2020) ........ 18
4 Pub. L. No. 116-136, 134 Stat. 281 § 2107(b)(1) (Mar. 27, 2020) .................... 18
5 Pub. L. No. 116-136, 134 Stat. 281 § 2201 (Mar. 27, 2020) ............................. 18
6 Pub. L. No. 116-136, 134 Stat. 281 § 6428(d) (Mar. 27, 2020) ......................... 18
7 Pub. L. No. 116-136, 134 Stat. 281 § 18001(b) (Mar. 27, 2020) ......................... 2
8 Pub. L. No. 116-136, 134 Stat. 281 § 18003(d)(8) (Mar. 27, 2020) .................. 18
9 Pub. L. No. 116-136, 134 Stat. 281 § 18004 (Mar. 27, 2020) .......... 2, 7-8, 15-19
10 Pub. L. No. 116-136, 134 Stat. 281 § 18004(a) (Mar. 27, 2020) ................... 2, 14
11 Pub. L. No. 116-136, 134 Stat. 281 § 18004(a)(1) (Mar. 27, 2020) .................. 16
12 Pub. L. No. 116-136, 134 Stat. 281 § 18004(b) (Mar. 27, 2020) ......................... 2
13 Pub. L. No. 116-136, 134 Stat. 281 § 18004(c) (Mar. 27, 2020) .............2, 16, 18
14 Other Authorities
15 Attorney General Order No. 2353-2001, 66 FR 3613-02, 2001 WL 31994
(Jan. 16, 2001) .................................................................................................11
16
HHS Notice, PRWORA; Interpretation of ‘Federal Public Benefit,’ 63 FR
17 41658-01, 1998 WL 435846 (Aug. 4, 1998) ................................11, 12, 14, 15
18 Janet M. Fox, LIHEAP IM 1999-10 on Federal Public Benefits Under the
Welfare Reform Law -- Revised Guidance, Office of Community Services,
19 U.S. Dep’t of Health & Human Servs. (June 15, 1999),
https://www.acf.hhs.gov/ocs/resource/federal-public-benefits-under-the-
20 welfare-reform-law-revised-guidance (last visited June 26, 2020) .......... 12, 13
21
22
PLAINTIFF’S MOTION FOR iv ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 U.S. Dep’t of Educ., Methodology for Calculating
Allocations per Section 18004(a)(1) of the CARES Act,
2 https://www2.ed.gov/about/offices/list/ope/heerf90percentformulaallocatione
xplanation.pdf (last visited June 23, 2020) ...............................................16, 17
3
U.S. Dep’t of Justice, et al., Joint Letter on Immigrant Access to Housing and
4 Services (Aug. 5, 2016), https://www.hhs.gov/sites/default/files/Joint-Letter-
August-2016.pdf (last visited June 26, 2020) .....................................11, 12, 19
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
PLAINTIFF’S MOTION FOR v ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 I. INTRODUCTION
2 Some of Washington’s “DREAMers”—non-citizens brought here as
3 children—have been forced to drop out of college during the COVID-19
4 pandemic because they cannot afford technology or internet necessary to engage
5 in online classes. Declaration of Brian Dixon, ECF No. 34 at ¶ 8. If educational
6 institutions could provide them CARES Act emergency financial assistance,
7 “they would be better able to manage the financial pressures COVID-19 has
8 caused and remain in school” when classes resume in just over a month. Id.
9 Despite initially advocating that the only statutory requirement was that
10 emergency funds be used to cover expenses related to the disruption of campus
11 operations due to coronavirus, Defendants (the Department) now maintain that
12 restrictions in 8 U.S.C. § 1611, a part of the Personal Responsibility and Work
13 Opportunity Reconciliation Act (PRWORA), prevent institutions receiving
14 emergency grant funds from distributing the money to noncitizens. But as one
15 court already has ruled, the Department’s first position was right. The
16 Department lacks statutory authority to interpret PRWORA. Further, PRWORA
17 does not apply to one-time emergency grants, distributed through state entities,
18 and generally available to impacted populations, as the agencies actually charged
19 with interpreting PRWORA have made clear. Further, the text, structure, and
20 purpose of the CARES Act preclude the Department’s new position: Congress
21 knew how—and did—restrict eligibility on the basis of immigration status for
22
PLAINTIFF’S MOTION FOR 1 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 some CARES Act assistance but did not with respect to the grants at issue here.
2 This Court should grant Washington’s motion for partial summary judgment.
3 II. STATUTORY AND FACTUAL BACKGROUND
4 On March 27, 2020, Congress enacted the Coronavirus Aid, Relief, and
5 Economic Security Act (CARES Act). Pub. L. No. 116-136, 134 Stat. 281
6 (Mar. 27, 2020). The CARES Act appropriated approximately $14 billion for the
7 Higher Education Emergency Relief Fund (HEERF). CARES Act § 18001(b).
8 Section 18004 commanded the Secretary of Education to distribute HEERF funds
9 to institutions of higher education using a precise formula based on student
10 enrollment; those institutions were required to use at least fifty percent of those
11 funds as emergency grants to students for “expenses related to the disruption of
12 campus operations due to coronavirus . . . .” Id. §§ 18004(a)-(c). Section 18004
13 did not grant the Secretary any rulemaking or interpretive authority, nor any
14 discretion in implementing Congress’s directives. Id. § 18004; ECF No. 31 at 25.
15 The Department initially empowered institutions to determine which
16 students would receive emergency student grants limited only by the express
17 requirements in the Act. On April 9, 2020, it released the portion of the CARES
18 Act funding Congress appropriated for student emergency grants along with a
19 letter from Secretary DeVos to college and university presidents which stated that
20 “[t]he CARES Act provides institutions with significant discretion on how to
21 award this emergency assistance to students.” ECF No. 6-1 at 8, Ex. A. She stated
22
PLAINTIFF’S MOTION FOR 2 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 that “[t]he only statutory requirement is that the funds be used to cover expenses
2 related to the disruption of campus operations due to coronavirus (including
3 eligible expenses under a student’s cost of attendance, such as food, housing,
4 course materials, technology, health care, and child care).” Id. (emphasis added).
5 Thus, notably at this time the Department did not believe that the citizenship
6 requirements of section 484 of Title IV of the Higher Education Act or PRWORA
7 served as a statutory bar to the disbursement of these funds.
8 But the Department reversed itself on April 21, 2020, when in connection
9 with its release of different CARES Act funding, the Department issued “FAQs”
10 that concluded that “[o]nly students who are or could be eligible to participate in
11 programs under Section 484 in Title IV of the Higher Education Act of 1965, as
12 amended (HEA), may receive emergency financial aid grants.” ECF No. 6-1 at
13 129, Ex. G, FAQ #9; see also ECF No. 6-1 at 133, Ex. H, FAQ #5 (the “Eligibility
14 Restriction”). Notable among these Eligibility Restrictions—and listed as the
15 first prohibiting factor in the FAQ by the Department—is the prohibition on
16 distribution of Title IV funds to non-U.S. citizens. 20 U.S.C. § 1091(a)(5) (2020)
17 (requiring federal financial aid recipients “be a citizen or national of the United
18 States, a permanent resident of the United States, or able to provide evidence
19 from the Immigration and Naturalization Service that he or she is in the United
20 States for other than a temporary purpose with the intention of becoming a citizen
21 or permanent resident[.]”).
22
PLAINTIFF’S MOTION FOR 3 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 On May 11, 2020, California Community Colleges filed suit against the
2 Department challenging the Title IV Eligibility Restrictions largely focusing on
3 the impact to non-citizen and DACA students. See Oakley v. Devos,
4 No. 20-cv-03215-YGR, 2020 WL 3268661 (N.D. Cal. June 17, 2020). On
5 May 19, 2020, Washington filed this suit also challenging the Title IV Eligibility
6 Restrictions and on the same day filed a motion for preliminary injunction.
7 ECF Nos. 1 and 5.
8 On May 21, 2020, the Department issued further guidance stating that, in
9 addition to the Title IV eligibility restriction, institutions were further restricted
10 from distributing funds to non-citizen students due to restrictions under 8 U.S.C.
11 § 1611. That statute is part of the Personal Responsibility and Work Opportunity
12 Reconciliation Act of 1996 (PRWORA), Pub. L. No. 104–193, 110 Stat. 2105
13 (Aug. 22, 1996). PRWORA restricts immigrants’ eligibility for certain “federal
14 public benefits,” which are defined in general terms by the statute. See 8 U.S.C.
15 § 1611(c) (2020) (listing categories of benefits “provided to an individual,
16 household, or family eligibility unit by an agency of the United States or by
17 appropriated funds of the United States.”). The definition does not include all
18 federal programs and includes several exceptions. Id. at §§ 1611(b), (c)(2).
19 The Department subsequently argued in their Response to Preliminary
20 Injunction that the PRWORA restrictions prevented institutions from distributing
21 funds to non-citizen students. ECF No. 22. Washington briefly responded to these
22
PLAINTIFF’S MOTION FOR 4 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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1 arguments in its Reply though with only an abbreviated ability to respond due to
2 page limitations. ECF No. 23. This Court issued a preliminary injunction, but it
3 stated that both sides made compelling arguments on the issue of whether
4 PRWORA would serve as a bar to students receiving CARES Act funding.
5 ECF No. 31 at 17-21. Thus the scope of the preliminary injunction did not reach
6 the applicability of 8 U.S.C. § 1611(a). Id. at 36.
7 On June 17, 2020, Judge Gonzalez Rogers from the United Stated District
8 Court of the Northern District of California granted California Community
9 College’s Motion for Preliminary Injunction. ECF No. 32-1. In that Order,
10 Judge Gonzalez Rogers found the Department’s argument that CARES Act
11 emergency student grants were “federal public benefits” unpersuasive and
12 enjoined the Department from enforcing 8 U.S.C. § 1611(a)’s restrictions as to
13 California institutions. ECF No. 32-1 at 24, 28-29.
14 Since the Court granted Washington’s Motion for Preliminary Injunction
15 the Department published an Interim Final Rule on June 15, 2020, that went into
16 effect immediately. Declaration of R. July Simpson (Simpson Decl.), Ex. A. In
17 its contemporaneous press release, the Department nearly ignored its original
18 restriction and revealed the true purpose of the rule: “Non-citizens . . . will not
19 receive taxpayer funds.” Id., Ex. B. Washington brings this motion to address this
20 belated rationale.
21
22
PLAINTIFF’S MOTION FOR 5 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
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1 III. ARGUMENT
2 A. Standard of Review
3 The Administrative Procedure Act (APA) provides that courts must “hold
4 unlawful and set aside” agency action that is “in excess of statutory jurisdiction,
5 authority, or limitations,” “not in accordance with law,” or “arbitrary, capricious,
6 [or] an abuse of discretion.” 5 U.S.C. §§ 706(2)(A), (C), (D) (2020). The APA
7 requires this Court to conduct “plenary review of the Secretary’s decision.”
8 Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971).
9 An agency “literally has no power to act . . . unless and until Congress
10 confers power upon it.” La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374
11 (1986). In determining whether agency action exceeds statutory authority, “the
12 question . . . is always whether the agency has gone beyond what Congress has
13 permitted it to do[.]” City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 297-98
14 (2013). When Congress has not delegated interpretive authority and yet an
15 agency takes it upon itself to exercise that authority, the agency’s action is not
16 entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense
17 Council, Inc., 467 U.S. 837, 842–43 (1984). Gonzales v. Oregon, 546 U.S. 243,
18 258 (2006); Sierra Club v. Trump, 929 F.3d 670, 692 (9th Cir. 2019). Even where
19 an agency has authority to interpret a statute, its interpretation will receive no
20 deference where “the intent of Congress is clear” on the question at issue.
21 Chevron, 467 U.S. at 842 & n.9.
22
PLAINTIFF’S MOTION FOR 6 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
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1 B. The Department Has No Authority to Enforce PRWORA or to Impose
Eligibility Restrictions on HEERF Funds
2
Neither the CARES Act nor PRWORA itself indicate that any
3
immigration-related eligibility restrictions apply to HEERF funds. The only
4
assertion that PRWORA would bar this sort of transfer comes from the
5
Department’s third “nonbinding” guidance document from May 21, then later in
6
the Interim Final Rule. These attempts to extend PRWORA’s restrictions beyond
7
their reach are invalid as the Department has no rulemaking or regulatory
8
authority over eligibility for HEERF funds, and their novel “interpretation” of
9
PRWORA is entitled to no deference.
10
First, as this Court and the Northern District of California have recognized,
11
the Department does not have any authority to impose conditions on institutions’
12
usage of HEERF funds, or add, change, or define eligibility criteria for students’
13
receipt of such assistance. See ECF No. 31 at 8-9 (Department does not have
14
rulemaking authority under the CARES Act); Oakley, 2020 WL 3268661,
15
at *9-12 (finding Department had no rulemaking authority under Section 18004,
16
and “likely exceeded its authority by imposing eligibility requirements on the
17
distribution of HEERF Student Assistance”). Neither Section 18004 nor the
18
CARES Act as a whole created any program of “federal public benefits” for the
19
Department of Education to “administer.” Because the Department does not have
20
the rulemaking or regulatory authority to “administer” the HEERF funds as a
21
federal program, it cannot define or alter the eligibility criteria set by Congress.
22
PLAINTIFF’S MOTION FOR 7 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
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1 See 8 U.S.C. § 1614 (2020) (agency that “administers” program of federal public
2 benefits must notify public of changes in eligibility). To the extent the
3 Department contends its guidance or Interim Final Rule interpretations are the
4 product of any delegated authority, they are mistaken.
5 Second, the Department’s interpretation of PRWORA is unpersuasive and
6 deserves no deference. Because the Department does not “administer” any
7 program involving the HEERF funds, their interpretation of whether those funds
8 are “federal public benefits” is not afforded Chevron deference, especially when
9 such an interpretation adds a condition to the funds’ usage not present in the
10 statute. See ECF No. 31 at 8-9 (Department’s interpretation of Section 18004 not
11 entitled to Chevron deference). Nor is the Department’s inconsistent
12 interpretation of the applicability of PRWORA and other statutory proscription
13 afforded any Skidmore deference. Id. at 9-10. As explained below, the
14 Department’s interpretation of PRWORA’s applicability is contrary to the
15 language of the CARES Act and PRWORA itself (which does not afford the
16 Department authority to set conditions on HEERF funds through PRWORA
17 enforcement), contradicted by other agencies’ guidance, and ignores key
18 considerations of the present situation.
19
20
21
22
PLAINTIFF’S MOTION FOR 8 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
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1 C. PRWORA Does Not Prevent Institutions From Distributing HEERF
Funds to Non-Citizens
2
1. HEERF emergency student grants are not “federal public
3 benefits”
4 PRWORA does not bar institutions from distributing funds to non-citizen
5 students because the HEERF student grants are not “federal public benefits” as
6 defined by that statute. Under PRWORA, a “federal public benefit” is (a) “any
7 grant, contract, loan, professional license, or commercial license provided by an
8 agency of the United States or by appropriated funds of the United States;” or
9 (b) “any . . . benefit[] . . . for which payments or assistance are provided to an
10 individual, household, or family eligibility unit by an agency of the United States
11 or by appropriated funds of the United States.” 8 U.S.C. § 1611(c)(1) (2020).
12 Despite the superficial breadth of this statutory definition, “federal public
13 benefits” refer to a much narrower subset of federal programs and their
14 administering agencies than the plain text indicates. See 8 U.S.C. § 1611(c)
15 (2020) (listing categories of benefits “provided to an individual, household, or
16 family eligibility unit by an agency of the United States or by appropriated funds
17 of the United States.”). They do not apply to all federal, state, and locally funded
18 activities and programs. Id. In fact, the statute includes many exceptions to the
19 meaning of federal public benefit. Id. at §§ 1611(b), (c)(2). These include access
20 to important emergency health services, public health assistance,m, and
21 community-based services necessary to protect life and safety. Id.
22 The limited scope of PRWORA’s definition of “federal public benefits”
PLAINTIFF’S MOTION FOR 9 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
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1 was clarified after its passage through multiple formal agency actions by the
2 Department of Justice and the U.S. Department of Health and Human Services
3 (HHS), among others. Indeed, PRWORA designated HHS as the agency
4 responsible for assisting the Attorney General in promulgating its implementing
5 regulations. See 8 U.S.C. §§ 1642(a)(1)-(2) (2020).
6 After PRWORA’s passage, the Attorney General was tasked with
7 promulgating the implementing regulations. 8 U.S.C. § 1642(a)(1) (2020). In
8 2001, after consulting with other Federal agencies, including HUD and HHS, the
9 Attorney General issued an Order identifying multiple types of programs,
10 services, or assistance do not qualify as programs of “federal public benefits,”
11 including:
12 (a) Crisis counseling and intervention programs; services and
assistance relating to child protection, adult protective services,
13 violence and abuse prevention, victims of domestic violence or other
criminal activity; or treatment of mental illness or substance abuse;
14 (b) Short-term shelter or housing assistance for the homeless, for
victims of domestic violence, or for runaway, abused, or abandoned
15 children;
(c) Programs, services or assistance to help individuals during
16 periods of heat, cold, or other adverse weather conditions;
(d) Soup kitchens, community food banks, senior nutrition
17 programs such as meals on wheels, and other such community
nutritional services for persons requiring special assistance;
18 (e) Medical and public health services (including treatment and
prevention of diseases and injuries) and mental health, disability, or
19 substance abuse assistance necessary to protect life or safety;
(f) Activities designed to protect the life or safety of workers,
20 children and youths, or community residents; and
(g) Any other programs, services, or assistance necessary for the
21 protection of life or safety.
22
PLAINTIFF’S MOTION FOR 10 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.737 Page 17 of 28
1 Attorney General Order No. 2353-2001, 66 FR 3613-02, 2001 WL 31994
2 (Jan. 16, 2001). As these agencies observed again in 2016, “[i]t is also important
3 to note that there are many government-funded programs and services that are
4 not considered ‘federal public benefits’ or ‘state or local public benefits’ and
5 therefore are not limited by the restrictions on immigrant access to public benefits
6 that were put in place by PRWORA.” See U.S. Dep’t of Justice, et al., Joint Letter
7 on Immigrant Access to Housing and Services, at 1, 3 (Aug. 5, 2016),
8 https://www.hhs.gov/sites/default/files/Joint-Letter-August-2016.pdf (last
9 visited June 26, 2020) (“DOJ Joint Letter”) (reminding recipients of federal
10 financial assistance “that they should not withhold certain services based on
11 immigration status when the services are necessary to protect life or safety.”).
12 HHS, which administers a number of programs covered by PRWORA such
13 as the Temporary Assistance to Needy Families (TANF) Program and Medicaid,
14 offered the most widely cited interpretation of “federal public benefits.” See HHS
15 Notice, PRWORA; Interpretation of ‘Federal Public Benefit,’ 63 FR 41658-01,
16 1998 WL 435846 (Aug. 4, 1998) (“HHS Notice”). HHS advised that part A of
17 PRWORA’s definition of “federal public benefit” “generally include[s]
18 agreements or arrangements between Federally funded programs and individuals,
19 such as research grants, student loans, or patent licenses.” Id. at 41659. HHS
20 acknowledges that “many government-funded programs and services . . . are not
21 considered ‘federal public benefits’ . . . and therefore are not limited by the
22
PLAINTIFF’S MOTION FOR 11 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.738 Page 18 of 28
1 restrictions on immigrant access to public benefits that were put in place by
2 PRWORA.” DOJ Joint Letter at 3 (emphasis added).
3 Similarly, HHS said the term “grants” refers to grants to individuals, not
4 “block grants” provided to states or localities. HHS Notice, 63 FR at 41659. HHS
5 stated that “unless the authorizing statutes require that the characteristics of these
6 groups form the basis for denial of services or benefits, these are not benefits.”
7 Id. Under the HHS Notice, assistance that is “generally targeted to communities”
8 and does not “mandate ineligibility for individuals [who] do not meet certain
9 criteria” is not a federal public benefit under subsection (c)(1)(B). Id.
10 Several classes of benefits—especially those that are “generally targeted
11 to communities”—have been determined to fall outside of PRWORA’s federal
12 public benefit restrictions. For example, the Maternal and Child Health Services
13 Block Grant, see 42 U.S.C. § 701, which makes access to health care services for
14 mothers and children available to low-income women and families is “a benefit
15 targeted to certain populations based on their characteristics,” rather than a
16 benefit intended for individual eligibility units, and is therefore “not a ‘Federal
17 public benefit.’ ” HHS Notice, 63 FR at 41660.
18 Similarly, funds distributed through the Low-Income Home Energy
19 Assistance Program (LIHEAP) that are used to weatherize structures that house
20 immigrants of all statuses are a community benefit, with no immigration status
21 verification of residents required. 42 U.S.C. §§ 6861 et seq. (2020); see also
22
PLAINTIFF’S MOTION FOR 12 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.739 Page 19 of 28
1 Janet M. Fox, LIHEAP IM 1999-10 on Federal Public Benefits Under the
2 Welfare Reform Law -- Revised Guidance, Office of Community Services,
3 U.S. Dep’t of Health & Human Servs. (June 15, 1999),
4 https://www.acf.hhs.gov/ocs/resource/federal-public-benefits-under-the-
5 welfare-reform-law-revised-guidance (last visited June 26, 2020).
6 Community Development Block Grant programs administered by HUD,
7 42 U.S.C. §§ 5103 et seq., also do not contain restrictions under PRWORA. Each
8 of these programs direct their benefits to communities, rather than to individuals
9 or family units based on particularized eligibility criteria.
10 Here, the CARES Act and specifically the HEERF program were enacted
11 to respond to a once-in-a-lifetime international emergency and public health
12 crisis caused by COVID-19. HEERF funds provide relief to institutions and their
13 students due to the significant disruption associated with COVID-19 and may be
14 used to address a broad range of needs due to this emergency caused by
15 COVID-19 including, but not limited to, food, housing, technology, health care,
16 or childcare. The program is thus most similar to the federally funded programs
17 that are exempted from the restrictions found in 1611(a) like the programs that
18 address public health, medical emergencies, disaster relief, or are “necessary for
19 the protection of life or safety.”
20 Moreover, as explained by HHS, the HEERF funds are not “grants” to
21 individuals. They are “block grants” targeted toward institutions of higher
22
PLAINTIFF’S MOTION FOR 13 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.740 Page 20 of 28
1 education, not grants of “federal public benefits” to individuals. See Rural Alaska
2 Cmty. Action Program v. Smith, 847 F.2d 535, 536 (9th Cir. 1988) (“the block
3 grant system . . . permits [federal fund grantees] to administer the program[] with
4 minimal federal involvement and few federal procedural requirements[.]”).
5 HEERF funds are outside the ambit of the definition of “federal public benefits”
6 because they (1) are assistance targeted to institutions and students generally and
7 thus are assistance “generally targeted to [a] communit[y],” and (2) are not funds
8 that require that any characteristics of those students form the basis for the denial
9 of the grants. 2 HHS Notice, 63 FR at 41659.
10 The fact that HEERF funds may flow through institutions to individuals
11 does not change this analysis. Like other federally allocated block grant monies
12 not subject to PRWORA, HEERF funds are intended to benefit educational
13 communities as a whole, allowing colleges and their populations to “prevent,
14 prepare for, and respond to coronavirus[.]” CARES Act § 18004(a).
15
16 2
For these reasons, the Northern District of California was persuaded that
17 PRWORA’s restrictions would not apply to HEERF funds. Oakley,
18 2020 WL 3268661, at *16 (“[T]he Court is not persuaded by the Secretary’s
19 argument that HEERF funds would constitute ‘Federal public benefits’ from
20 which most non-citizens would be denied eligibility, nor that the Secretary’s
21 election to apply 1611(a)’s restrictions to these funds as an eligibility condition
22 would be lawful.”). This Court should hold the same.
PLAINTIFF’S MOTION FOR 14 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.741 Page 21 of 28
1 “Mixed-benefits” programs, where some federal funds are provided to broad
2 communities and others flow directly to individuals or families, are not
3 automatically considered “federal public benefits.” See HHS Notice, 63 FR at
4 41660 (“Programs that are primarily designed to target and provide services to
5 communities should not be burdened with new verification procedures merely
6 because they may include some services that flow more directly to the individual,
7 household or family.”).
8 Given the non-exhaustive nature of PRWORA and these longstanding
9 agency interpretations, Congress would have no reason to assume that a program
10 like HEERF would be restricted by the provisions of PRWORA. In fact, as
11 described above, the careful restriction of the Department’s rulemaking and
12 administrative authority in Section 18004 prevents the Department from treating
13 them as such. The emergency community benefits flowing from HEERF
14 funds—structured as a formula block grant—place those funds outside of the
15 parameters of the “federal public benefits” restricted under PRWORA.
16 2. PRWORA’s “notwithstanding” clause does not mean
PRWORA automatically applies to HEERF Funds
17
As discussed above, PRWORA does not apply in all cases where there is
18
a dispersal of federal assistance. Further, PRWORA’s “notwithstanding” clause
19
does not and cannot dispel Congress’s clear intent that the one-time, emergency
20
grants set forth in Section 18004 are not subject to immigration-related
21
restrictions. “Notwithstanding” provisions in statutes do not mean that their
22
PLAINTIFF’S MOTION FOR 15 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.742 Page 22 of 28
1 statutes apply broadly and automatically to any subsequent law, as they “can be
2 overridden by other statutory indicators.” Ledezma-Galicia v. Holder, 636 F.3d
3 1059, 1071 n.12 (9th Cir. 2010). The CARES Act contains such indicators.
4 Here, the intent behind the HEERF Funds in Section 18004 is clear:
5 institutions may distribute the emergency assistance funds they receive to any
6 students, and the Department may not impose restrictions limiting this discretion.
7 And as this Court and the Northern District of California have observed, the
8 CARES Act repeatedly manifests Congress’s intent that HEERF funds remain
9 free from extraneous eligibility limitations. ECF Nos. 31 at 26-30 and 32-1 at
10 12-18, 23-24, 28. Section 18004, and the CARES Act in general, make no
11 mention of PRWORA or its eligibility restrictions. To the contrary, the structure
12 of Section 18004 reflects the intent of Congress that all students, regardless of
13 immigration status, be eligible for grants.
14 Subsection (a)(1) of § 18004 mandates that the Secretary “shall allocate”
15 HEERF Assistance according to a precise formula requiring counting all students
16 not previously enrolled only in online learning. Of that calculation 75% are Pell
17 Grant Recipients who must meet certain conditions including income
18 requirements, but the remaining 25% are all students, including those who are
19 ineligible under § 1611, minus distance learners.3 Section 18004(c)’s direction
20
21 3
This process was employed to calculate each IHE’s allocation.
22 See U.S. Dep’t of Educ., Methodology for Calculating
PLAINTIFF’S MOTION FOR 16 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.743 Page 23 of 28
1 that institutions “shall use no less than 50 percent” of the funds “for emergency
2 financial aid grants to students” for “eligible” expenses related to COVID-19,
3 including “a student’s cost of attendance.” The formula’s inclusion of students
4 irrespective of PRWORA eligibility shows that Congress intended for these
5 restrictions not to apply to HEERF Assistance.
6 It would be illogical and contrary to Congressional intent to hold that the
7 same terms take on different meaning in the same section. City of Los Angeles v.
8 Barr, 941 F.3d 931, 941 (9th Cir. 2019) (“Under the normal rule of statutory
9 construction, we presume that identical words used in different parts of the same
10 act are intended to have the same meaning.”) (internal quotation marks and
11 citations omitted). Nor would it make sense to include certain students for
12 funding formula and allocation purposes, but to categorically exclude them from
13 the relief that the program was intended to provide.
14 Moreover, while Congress did not impose immigration status eligibility
15 restrictions on HEERF assistance, it did restrict other assistance provided under
16 the CARES Act. The lack of mention in Section 18004 of PRWORA or any other
17 restriction on eligibility is telling, as other sections of the CARES Act do contain
18 some eligibility restriction on recipients of grants or assistance. For instance, the
19
20 Allocations per Section 18004(a)(1) of the CARES Act,
21 https://www2.ed.gov/about/offices/list/ope/heerf90percentformulaallocationexp
22 lanation.pdf (last visited June 23, 2020).
PLAINTIFF’S MOTION FOR 17 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.744 Page 24 of 28
1 CARES Act specifically excludes “any nonresident alien individual” from
2 eligibility for recovery rebates under Section 2201. See CARES Act §§ 2201,
3 6428(d) (recovery rebates are available for “eligible individuals,” and excludes
4 “nonresident alien individual[s]”).
5 The CARES Act also contains a number of other provisions explicitly
6 mandating individual eligibility criteria. See, e.g., CARES Act
7 §§ 1102(a)(2)(36)(A) (defining “eligible recipients” for paycheck protection
8 program); 2107(b)(1) (describing unemployment compensation as being
9 available “for each eligible individual”); 18003(d)(8) (can use funds “to provide
10 meals to eligible students”). No such eligibility restriction on individuals is
11 present in Section 18004; instead, the eligibility for grants is simple: recipients
12 must be “students.” Id. § 18004(c). Where one section of a statute explicitly states
13 parameters for its application, but another section is silent, those parameters
14 should be presumed to not apply to the latter. Kucana v. Holder, 558 U.S. 233,
15 249 (2010) (“[W]here Congress includes particular language in one section of a
16 statute but omits it in another section of the same Act, it is generally presumed
17 that Congress acts intentionally and purposely in the disparate inclusion or
18 exclusion.”) (quoting Nken v. Holder, 556 U.S. 418, 430 (2009));
19 see also Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (same).
20 Thus, it is presumed that Congress intended that immigration-related
21 eligibility tests would not apply in Section 18004, and this presumption is
22
PLAINTIFF’S MOTION FOR 18 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.745 Page 25 of 28
1 supported by the text and structure of Section 18004 and the CARES Act itself.
2 Funds made available to educational institutions through HEERF were not
3 intended to be restricted based on immigration status, whether they are used to
4 address disruptions in instruction, or distributed to students. Congress established
5 emergency aid such as the HEERF funds to support institutions in protecting the
6 integrity of their communities during a crisis. See, e.g., DOJ Joint Letter at 2-3
7 (joint position of the DOJ, HHS, and HUD that PRWORA’s immigration status
8 verification requirements do not restrict access to specified short-term measures
9 which “provid[e] basic needs and safety while they seek to rebuild their lives.”).
10 Ultimately, the CARES Act and PRWORA are two distinct statutes with
11 different purposes and structure. PRWORA was enacted with the objective of
12 decreasing long-term dependency on public benefits, “remov[ing] the incentive
13 for illegal immigration provided by the availability of public benefits,” 8 U.S.C.
14 § 1601(6), and “limit[ing] lifetime welfare benefits,” H.R. Rep. No. 104-651, at 3
15 (1996). That objective “would not apply to HEERF, a one-time federal funding
16 allocation to address emergency needs during a national public health crisis.”
17 Oakley, 2020 WL 3268661, at *16 n.30.
18 Further, PRWORA’s general restrictions are inapplicable to the more
19 specific provisions governing HEERF funds. “Where two statutes conflict, the
20 later-enacted, more specific provision generally governs.” United States v.
21 Juvenile Male, 670 F.3d 999, 1008 (9th Cir. 2012). Thus, the specific policy
22
PLAINTIFF’S MOTION FOR 19 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.746 Page 26 of 28
1 articulated in the CARES Act controls this Court’s construction of PRWORA’s
2 applicability. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143
3 (2000) (“[A] specific policy embodied in a later federal statute should control our
4 construction of the [earlier] statute, even though it ha[s] not been expressly
5 amended.”) (internal citations omitted).
6 Although the Department has argued that this omission may be the result
7 of the haste with which Congress adopted the CARES Act, the assumption that
8 Congress made a mistake is contrary to all canons of statutory construction. By
9 contrast, a cardinal canon of statutory construction requires that “courts must
10 presume that a legislature says in a statute what it means and means in a statute
11 what it says there.” Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992).
12 Congress thus knew how to—and in fact did—restrict eligibility on the basis of
13 immigration status for some assistance under the CARES Act but did not do so
14 with respect to HEERF assistance.
15 IV. CONCLUSION
16 For the foregoing reasons this Court should grant Washington’s motion for
17 partial summary judgment.
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PLAINTIFF’S MOTION FOR 20 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.747 Page 27 of 28
1 RESPECTFULLY SUBMITTED this 29th day of June 2020.
2 ROBERT W. FERGUSON
Attorney General of Washington
3
4 /s/ Spencer W. Coates
SPENCER W. COATES, WSBA #49683
5 R. JULY SIMPSON, WSBA #45869
JEFFREY T. SPRUNG, WSBA #23607
6 PAUL M. CRISALLI, WSBA #40681
Assistant Attorneys General
7 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
8 (206) 464-7744
spencer.coates@atg.wa.gov
9 july.simpson@atg.wa.gov
jeff.sprung@atg.wa.gov
10 paul.crisalli@atg.wa.gov
Attorneys for Plaintiff State of Washington
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PLAINTIFF’S MOTION FOR 21 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
Case 2:20-cv-00182-TOR ECF No. 37 filed 06/29/20 PageID.748 Page 28 of 28
1 DECLARATION OF SERVICE
2 I hereby declare that on this day I caused the foregoing document to be
3 electronically filed with the Clerk of the Court using the Court’s CM/ECF System
4 which will serve a copy of this document upon all counsel of record.
5 DATED this 29th day of June 2020, at Seattle, Washington.
6
/s/ Spencer W. Coates
7 SPENCER W. COATES, WSBA #49683
Assistant Attorney General
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PLAINTIFF’S MOTION FOR 22 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation
PARTIAL SUMMARY JUDGMENT 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
NO. 2:20-cv-00182-TOR (206) 464-7744
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