Motion for Preliminary Injunction — Oakley v. DeVos, No. 4:20-cv-03215 (N.D. Cal.), Doc. 16
Summary
Plaintiffs' Notice of Motion and Motion for Preliminary Injunction, with a Memorandum of Points and Authorities, Document 16, filed May 13, 2020, in Eloy Ortiz Oakley, et al. v. Betsy DeVos and U.S. Department of Education, Case No. 20-cv-03215-YGR, in the United States District Court for the Northern District of California. Plaintiffs move for a preliminary injunction prohibiting Defendants from imposing eligibility restrictions on students who may receive Higher Education Emergency Relief Funds appropriated in the CARES Act. The notice gives a hearing date of June 23, 2020, at 2:00 p.m. before the Honorable Yvonne Gonzalez Rogers. The introduction states that Congress directed disbursement of approximately $12.56 billion, with $580 million allocated to community colleges throughout the State of California.
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Cite this document
“Motion for Preliminary Injunction — Oakley v. DeVos, No. 4:20-cv-03215 (N.D. Cal.), Doc. 16.”
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 1 of 36
1 XAVIER BECERRA
Attorney General of California
2 CHERYL FEINER
MICHAEL NEWMAN
3 Senior Assistant Attorneys General
CHRISTINE CHUANG
4 Supervising Deputy Attorney General
JULIA HARUMI MASS
5 JASLEEN SINGH
SHUBHRA SHIVPURI
6 JOSHUA SONDHEIMER
LEE I. SHERMAN (SBN 272271)
7 Deputy Attorneys General
300 S. Spring St., Suite 1702
8 Los Angeles, CA 90013
Telephone: (213) 269-6404
9 Fax: (213) 897-7605
E-mail: Lee.Sherman@doj.ca.gov
10 Attorneys for Plaintiffs Eloy Ortiz Oakley and Board of
Governors of the California Community Colleges
11
(List of other Plaintiffs’ counsel continued on next page)
12
13 IN THE UNITED STATES DISTRICT COURT
14 FOR THE NORTHERN DISTRICT OF CALIFORNIA
15 OAKLAND DIVISION
16
ELOY ORTIZ OAKLEY, in his official Case No. 20-cv-03215-YGR
17 capacity as Chancellor of California
Community Colleges et al., PLAINTIFFS’ NOTICE OF MOTION
18 AND MOTION FOR PRELIMINARY
Plaintiffs, INJUNCTION; MEMORANDUM OF
19 POINTS AND AUTHORITIES IN
v. SUPPORT THEREOF
20
Date: June 23, 2020
21 BETSY DEVOS, in her official capacity as Time: 2:00 p.m.
the United States Secretary of Education; Dept: Courtroom 1
22 U.S. DEPARTMENT OF EDUCATION, Judge: Honorable Yvonne Gonzalez
Rogers
23 Defendants. Trial Date: None Set
Action Filed: May 11, 2020
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Pls.’ Notice of Mot. and Mot. for Prelim. Inj.; MPA in Supp. Thereof (20-cv-03215-YGR)
Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 2 of 36
1 JOHN SHUPE
Lynch and Shupe, LLP
2 316 Mid Valley Center # 180
Carmel, CA 93923-8516
3 Telephone: (650) 579-5950
Fax: (650) 579-0300
4 E-mail: jshupe@lynchshupelaw.com
Attorney for Plaintiff Foothill-De Anza Community College District
5
JEFFREY M. PRIETO
6 General Counsel
Los Angeles Community College District
7 770 Wilshire Boulevard
Los Angeles, CA 90017
8 Telephone: (213) 891-2188
Fax: (213) 891-2138
9 E-mail: prietojm@laccd.edu
Attorney for Plaintiff Los Angeles Community College District
10
JP SHERRY
11 General Counsel
Los Rios Community College District
12 1919 Spanos Court
Sacramento, CA 95825
13 Telephone: (916) 568-3042
E-mail: sherryj@losrios.edu
14 Attorney for Plaintiff Los Rios Community College District
15 MATTHEW T. BESMER
General Counsel
16 State Center Community College District
1171 Fulton Street
17 Fresno, CA 93721
Telephone: (559) 243-7121
18 E-mail: matthew.besmer@scccd.edu
Attorney for Plaintiff State Center Community College District
19
LJUBISA KOSTIC
20 Director, Legal Services & EEO
San Diego Community College District
21 3375 Camino del Rio South, Room 385
San Diego, CA 92108
22 Telephone: (619) 388-6877
Fax: (619) 388-6898
23 E-mail: lkostic@sdccd.edu
Attorney for Plaintiff San Diego Community College District
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 3 of 36
1 TABLE OF CONTENTS
2 Page
3 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION .......................... 1
INTRODUCTION ...................................................................................................................... 1
4
BACKGROUND ........................................................................................................................ 3
5 I. THE PANDEMIC’S EFFECT ON CALIFORNIA COMMUNITY COLLEGES AND
STUDENTS ............................................................................................................ 3
6
II. CONGRESS ESTABLISHED HEERF TO MAKE EMERGENCY ASSISTANCE
7 AVAILABLE TO ALL STUDENTS ............................................................................. 4
III. DOE ISSUED CONFLICTING INTERPRETATIONS REGARDING HEERF
8 ELIGIBILITY.......................................................................................................... 5
9 IV. THE IMPACT OF THE HEERF ELIGIBILITY REQUIREMENTS ON PLAINTIFFS.............. 6
A. The HEERF Eligibility Requirements Likely Exclude a Majority of
10 California Community College Students .................................................. 6
11 B. The HEERF Eligibility Requirements Undermine Students’ Ability
to Participate in Remote Learning and Will Lead to Dis-enrollment ......... 8
12 C. The HEERF Eligibility Requirements Harm the California
Community College System and Its Missions ........................................... 9
13
D. Plaintiff Districts Face Legal Jeopardy If They Do Not Comply
14 with the HEERF Eligibility Requirements that Were Imposed After
Some Colleges Accepted the Terms of the Grant .................................... 11
15 LEGAL STANDARD............................................................................................................... 11
16 ARGUMENT ........................................................................................................................... 12
I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIMS THAT THE HEERF
17 ELIGIBILITY REQUIREMENTS ARE UNLAWFUL AND UNCONSTITUTIONAL .............. 12
18 A. Because Congress Has Not Authorized the HEERF Eligibility
Requirements, They Are Ultra Vires and Violate the Separation of
19 Powers ................................................................................................... 12
1. The CARES Act Does Not Impose or Incorporate Title IV’s
20 Eligibility Requirements to HEERF ............................................ 12
21 2. The CARES Act Does Not Delegate Authority to DoE to
Impose the HEERF Eligibility Requirements .............................. 14
22 3. The HEERF Eligibility Requirements Are Inconsistent with
the Grant’s Formula Structure and Intended Flexibility for
23 Higher Education Institutions ..................................................... 15
24 B. The HEERF Eligibility Requirements Violate the APA .......................... 17
C. The HEERF Eligibility Requirements Violate the Spending Clause ........ 19
25
II. PLAINTIFFS SATISFY THE REMAINING FACTORS NECESSARY TO OBTAIN A
26 PRELIMINARY INUNCTION ................................................................................... 22
A. Plaintiffs Will Suffer Irreparable Harm .................................................. 22
27
B. The Public Interest Weighs Heavily in Favor of Provisional Relief ........ 24
28
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 4 of 36
1 TABLE OF CONTENTS
(continued)
2 Page
3 CONCLUSION ........................................................................................................................ 25
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 5 of 36
1 TABLE OF AUTHORITIES
2 Page
3 CASES
4 Alcoa S.S. Co. v. Fed. Maritime Com.
348 F.2d 756 (D.C. Cir. 1965).............................................................................................. 15
5
6 All. For the Wild Rockies v. Cottrell
632 F.3d 1127 (9th Cir. 2011) .............................................................................................. 12
7
Am. Trucking Ass’ns, Inc. v. Los Angeles
8 559 F.3d 1046 (9th Cir. 2009) .........................................................................................22, 24
9 Amalgamated Transit Union v. Skinner
894 F.2d 1362 (D.C. Cir. 1990)............................................................................................ 17
10
Ariz. Dream Act Coal. v. Brewer
11
855 F.3d 957 (9th Cir. 2017) ................................................................................................ 22
12
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy
13 548 U.S. 291 (2006) ............................................................................................................. 21
14 Chalk v. U.S. Dist. Court Cent. Dist. of Cal.
840 F.2d 701 (9th Cir. 1988) ................................................................................................ 22
15
Chicago v. Barr
16 No. 19-3290, 2020 WL 2078395 (7th Cir. Apr. 30, 2020) ...............................................16, 20
17
Chicago v. Sessions
18 888 F.3d 272 (7th Cir. 2018) ................................................................................................ 17
19 Clinton v. City of New York
524 U.S. 417 (1998) ............................................................................................................. 16
20
E. Bay Sanctuary Covenant v. Trump
21 932 F.3d 742 (9th Cir. 2018) ................................................................................................ 25
22
FCC v. Fox Television Stations, Inc.
23 556 U.S. 502 (2009) ........................................................................................................17, 18
24 Gen. Chem. Corp. v. United States
817 F.2d 844 (D.C. Cir. 1987).............................................................................................. 18
25
In re Aiken Cty.
26 725 F.3d 255 (D.C. Cir. 2013).............................................................................................. 12
27 Kansas v. United States
28 249 F.3d 1213 (10th Cir. 2001) ............................................................................................ 23
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Kollaritsch v. Mich. State Univ. Bd. of Trs.
944 F.3d 613 (6th Cir. 2019) ................................................................................................ 20
4
La. Pub. Serv. Comm’n v. FCC
5
476 U.S. 355 (1986) ............................................................................................................. 12
6
League of Wilderness Defs./Blue Mountains Biodiversity Project v. Connaughton
7 752 F.3d 755 (9th Cir. 2014) ................................................................................................ 24
8 Los Angeles v. Barr
941 F.3d 931 (9th Cir. 2019) ................................................................................................ 15
9
Los Angeles v. McLaughlin
10 865 F.2d 1084 (9th Cir. 1989) .............................................................................................. 15
11
Meyer v. Nebraska
12 262 U.S. 390 (1923) ............................................................................................................. 25
13 Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.
463 U.S. 29 (1983)..........................................................................................................17, 19
14
Nat’l Parks Conservation Ass’n v. EPA
15 788 F.3d 1134 (9th Cir. 2015) .............................................................................................. 18
16 Navajo Nation v. HHS
17 325 F.3d 1133 (9th Cir. 2003) .........................................................................................13, 14
18 New York v. HHS
414 F. Supp. 3d 475 (S.D.N.Y. 2019)................................................................................... 21
19
Nken v. Holder
20 556 U.S. 418 (2009) ............................................................................................................. 24
21 Norsworthy v. Beard
22 87 F. Supp. 3d 1164 (N.D. Cal. 2015) .................................................................................. 22
23 Pennhurst State Sch. & Hosp. v. Halderman
451 U.S. 1 (1981)...................................................................................................... 12, 20, 21
24
Philadelphia v. AG of the U.S.
25 916 F.3d 276 (3rd Cir. 2019) ................................................................................................ 15
26 Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health
699 F.3d 962 (7th Cir. 2012) ................................................................................................ 16
27
28
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 7 of 36
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Providence v. Barr
954 F.3d 23 (1st Cir. 2020) .................................................................................................. 15
4
Regents of the Univ. of Cal. v. DHS
5
279 F. Supp. 3d 1011 (N.D. Cal. 2018) ................................................................................ 23
6
Rodriguez v. Cuomo
7 953 F.2d 33 (2d Cir. 1992) ................................................................................................... 16
8 Rodriguez v. Robbins
715 F.3d 1127 (9th Cir. 2013) .............................................................................................. 25
9
Rural Alaska Cmt. Action Program v. Smith
10 847 F.2d 535 (9th Cir. 1988) ................................................................................................ 16
11
Safe Air for Everyone v. EPA
12 488 F.3d 1088 (9th Cir. 2007) .............................................................................................. 19
13 San Francisco v. Sessions
349 F. Supp. 3d 924 (N.D. Cal. 2018) .............................................................................20, 21
14
San Francisco v. Trump
15 897 F.3d 1225 (9th Cir. 2018) .........................................................................................12, 25
16 Santa Clara v. Trump
17 250 F. Supp. 3d 497 (N.D. Cal. 2017) .............................................................................23, 24
18 Santa Clara v. Trump
275 F. Supp. 3d 1196 (N.D. Cal. 2017) ................................................................................ 21
19
SEC v. Chenery Corp.
20 318 U.S. 80 (1943)............................................................................................................... 19
21 South Dakota v. Dole
22 483 U.S. 203 (1987) ............................................................................................................. 19
23 State Highway Com. v. Volpe
479 F.2d 1099 (8th Cir. 1973) .............................................................................................. 15
24
Texas v. United States
25 809 F.3d 134 (5th Cir. 2015) ................................................................................................ 24
26 Trump v. Int’l Refugee Assistance Project
137 S. Ct. 2080 (2017) ......................................................................................................... 11
27
28
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 8 of 36
1 TABLE OF AUTHORITIES
(continued)
2 Page
3 Util. Air Regulatory Grp. v. EPA
573 U.S. 302 (2014) ............................................................................................................. 14
4
Washington v. Trump
5
847 F.3d 1151 (9th Cir. 2017) .........................................................................................22, 23
6
Winter v. NRDC
7 555 U.S. 7 (2008)................................................................................................................. 11
8 FEDERAL STATUTES
9 5 United States Code
§ 706.................................................................................................................................... 17
10
20 United States Code
11
§ 1002 .................................................................................................................................. 14
12 § 1011a ................................................................................................................................ 13
§ 1011i................................................................................................................................. 13
13 § 1011m ............................................................................................................................... 13
§ 1018 .................................................................................................................................. 14
14 § 1066 .................................................................................................................................. 14
§ 1072 .................................................................................................................................. 14
15
§ 1078 .................................................................................................................................. 14
16 § 1082 .................................................................................................................................. 14
§ 1087 .................................................................................................................................. 14
17 § 1091 .............................................................................................................................. 7, 13
§ 1416 .................................................................................................................................. 14
18
Pub. L. No. 116-136, 134 Stat. 281 (2020) .......................................................................... passim
19
20 STATE STATUTES
21 California Education Code
§ 66010.4 ............................................................................................................................. 10
22 § 66251 ................................................................................................................................ 23
§ 68130.5 ............................................................................................................................. 23
23 §§ 69430-460 ....................................................................................................................... 23
§ 70901 .................................................................................................................................. 9
24
§ 76396.3 ............................................................................................................................. 23
25 § 78211.5 ............................................................................................................................. 23
26
27
28
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1 TABLE OF AUTHORITIES
(continued)
2 Page
3 FEDERAL REGULATIONS
4 2 Code of Federal Regulations
§ 180.700 ............................................................................................................................. 11
5
§ 180.800 ........................................................................................................................11, 24
6
34 Code of Federal Regulations
7 § 668.14 ............................................................................................................................... 18
§ 668.32 ................................................................................................................................. 7
8 § 668.33 ................................................................................................................................. 7
9 COURT RULES
10 Federal Rules of Civil Procedure
11 Rule 65 .................................................................................................................................. 1
12
13
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1 NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION
2 PLEASE TAKE NOTICE THAT ON June 23, 2020, at 2:00 p.m. or as soon therefore as it
3 may be heard before the Honorable Yvonne Gonzalez Rogers, Plaintiffs Chancellor Eloy Ortiz
4 Oakley, the Board of Governors of the California Community Colleges, Foothill-De Anza
5 Community College District, Los Rios Community College District, Los Angeles Community
6 College District, State Center Community College District, and San Diego Community College
7 District (Plaintiffs) will and do hereby move the Court pursuant to Fed. R. Civ. P. 65 for a
8 preliminary injunction prohibiting Defendants from imposing eligibility restrictions on students
9 who may receive Higher Education Emergency Relief Funds that were appropriated by Congress
10 for higher education institutions in the Coronavirus Aid, Relief, and Economic Security Act
11 (CARES Act), Pub. L. No. 116-136, 134 Stat. 281 (2020). This Motion is based on this Notice of
12 Motion and Motion, the Memorandum of Points and Authorities, the declarations, the Request for
13 Judicial Notice, and any other written or oral evidence or argument as may be presented.
14 MEMORANDUM OF POINTS AND AUTHORITIES
15 INTRODUCTION
16 Plaintiffs bring this motion to seek necessary provisional relief to stop the U.S. Department
17 of Education’s (DoE) unlawful and arbitrary attempt to exclude hundreds of thousands of
18 community college students across the State of California, including Deferred Action for
19 Childhood Arrival (DACA) recipients, undocumented students, and many students who are U.S.
20 citizens or permanent residents, from receiving the emergency assistance intended by Congress to
21 enable them to continue their education at Plaintiffs’ community colleges during the COVID-19
22 pandemic. In the CARES Act, Congress directed DoE to disburse approximately $12.56 billion
23 from the newly created Higher Education Emergency Relief Fund (HEERF) by a specific formula
24 set by Congress to institutions of higher education to prevent, prepare for, and respond to the
25 coronavirus, with $580 million allocated to community colleges throughout the State of
26 California. See Req. for Jud. Notice (RJN) Exs. A-B. Congress conferred nearly unfettered
27 flexibility for higher education institutions to use these grants for any costs related to the
28 coronavirus, only requiring that at least half of each institution’s allocation be used to provide
1
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1 emergency relief to students for expenses related to campus disruptions caused by the pandemic.
2 At least initially, DoE recognized this congressional intent. Soon after the enactment of the
3 CARES Act, Defendants stated that: (a) each higher education institution could distribute HEERF
4 assistance to students in a manner that it sought fit to meet the needs of its students; (b) funds
5 could be distributed to all students; and (c) HEERF assistance would not constitute financial aid
6 under Title IV of the Higher Education Act (Title IV), hence, not limiting student eligibility.
7 Inexplicably, on April 21, Defendants changed course. In guidance documents directed to
8 higher education institutions (April 21 HEERF Guidances), DoE said that HEERF assistance is
9 subject to Title IV’s eligibility limitations, and specifically stated that higher education
10 institutions cannot use these funds for non-citizens who are ineligible to receive aid under Title
11 IV. These eligibility restrictions (HEERF Eligibility Requirements) exclude, among others,
12 DACA recipients, other non-citizens with temporary immigration status, and some of the more
13 financially disadvantaged citizens and permanent resident students enrolled in California
14 community colleges. Meanwhile, Defendants’ conflicting interpretations, occurring after some
15 colleges signed certifications attesting to compliance with the terms and conditions of HEERF,
16 have caused substantial confusion throughout the California community college system.
17 The HEERF Eligibility Requirements are ultra vires and violate separation of powers
18 principles because there is no provision of the CARES Act that imposes the HEERF Eligibility
19 Requirements or delegates authority to Defendants to impose any eligibility requirements. Rather,
20 the HEERF Eligibility Requirements are directly inconsistent with Congress’s intent to: (a)
21 prescribe a formula, which accounted for all students not previously enrolled only in online
22 (distance) learning before the coronavirus, not just Title IV recipients, and (b) confer discretion to
23 higher education institutions to set the criteria for distributing HEERF assistance. The HEERF
24 Eligibility Requirements violate the Administrative Procedure Act (APA) because they are in
25 excess of statutory authority, violate the U.S. Constitution, and are arbitrary and capricious. The
26 HEERF Eligibility Requirements also violate the Spending Clause of the Constitution because,
27 among other reasons, Congress has not unambiguously imposed them, DoE’s conflicting
28 guidances have created irreconcilable ambiguities, and the requirements were imposed only after
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1 some colleges executed certifications to comply with the grant’s terms and conditions—
2 certifications that explicitly stated that assistance would not constitute financial aid under Title
3 IV.
4 These eligibility requirements will irreparably harm Plaintiffs and their students at a time
5 when emergency relief is needed immediately. This is evident by the very nature of these funds,
6 which is to respond urgently to the fallout caused by the COVID-19 pandemic. Because of this
7 crisis, students at Plaintiff Districts, and at community colleges throughout California, are
8 incurring increased costs of living and educational expenses as a result of the sudden and
9 disruptive shift to remote learning and adjustments to living conditions. Plaintiffs’ already
10 strained resources are further burdened by having to find alternative sources of assistance to
11 provide to their unlawfully excluded students, in order to remain true to the principles of equity
12 and inclusivity at the heart of the community college system. DoE’s actions only serve to increase
13 the likelihood of student dis-enrollment, which harms Plaintiffs’ classrooms in the short term,
14 their budgets in the long term, and their students’ lives forever. Plaintiffs respectfully request that
15 the Court grant their motion to prevent this unconscionable outcome.
16 BACKGROUND
17 I. THE PANDEMIC’S EFFECT ON CALIFORNIA COMMUNITY COLLEGES AND STUDENTS
18 The effect of COVID-19 on higher education has been swift, multifaceted, and unsparing.
19 The impact on Plaintiffs has been no exception. The communities that comprise the community
20 college system represent diversity in all respects—from their geography (ranging from the
21 metropolis of Los Angeles to the agricultural town of Reedley) to their student populations
22 (among the most diverse of all California’s higher education institutions). They have all shared,
23 however, in the dramatic disruption inflicted by the virus. To keep their students and staff safe,
24 and to comply with the statewide shelter in place order effective on March 19, 2020, Plaintiffs
25 closed campuses and made virtually all of their education remote. Bennett Decl. ¶ 7; Cervantes
26 Decl. ¶ 7; Dixon Decl. ¶ 9; Cornner Decl. ¶ 8; Knox Decl. ¶ 11. The transition has required the
27 mobilization of an entire infrastructure—in addition to training faculty on remote instruction, staff
28 had to immediately procure laptop devices and increase access to broadband internet connections;
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1 these efforts that are ongoing. Knox Decl. ¶ 16; Cervantes Decl. ¶ 8; Bennett Decl. ¶ 8;
2 Goldsmith Decl. ¶¶ 12-13; Cornner Decl. ¶ 9; Dixon Decl. ¶¶ 11-12. The transition has entailed
3 the creation of a virtual community, with Plaintiffs attempting to provide core student services
4 that were previously provided in person, such as instructional support, counseling, and peer
5 support, either telephonically or online. Knox Decl. ¶¶ 12-13; Dixon Decl. ¶ 17; Goldsmith Decl.
6 ¶ 17; Cervantes Decl. ¶ 8; Cornner Decl. ¶ 9. Plaintiffs have also had to marshal resources to
7 address their students’ most basic needs, such as health care and adequate food. Bennett Decl.
8 ¶ 9; Goldsmith Decl. ¶¶ 15, 17; Dixon Decl. ¶¶ 14, 17; Cervantes Decl. ¶ 10. This all while staff
9 themselves are working remotely. Mandy Decl. ¶ 10; Cornner Decl. ¶ 8; Cervantes Decl. ¶ 7.
10 During this unprecedented crisis, the mental and physical health of community college
11 students has deteriorated. Students have reported extremely high levels of stress and anxiety.
12 Knox Decl. ¶¶ 17-18; Cervantes Decl. ¶ 11; Goldsmith Decl. ¶ 16; Bennett Decl. ¶ 7; Dixon Decl.
13 ¶ 16; Cornner Decl. ¶ 12. Campus closures isolate students, preventing them from accessing the
14 peer and other supports they need to succeed. Dixon Decl. ¶ 18. The lack of opportunity to
15 interact with faculty, struggles with time management, and the lack of a quiet environment have
16 inhibited students’ ability to learn. Id. ¶¶ 13, 18; Bennett Decl. ¶ 7; Goldsmith Decl. ¶ 14;
17 Cervantes Decl. ¶ 9; Cornner Decl. ¶ 10; Knox Decl. ¶ 14. Faculty members have reported seeing
18 students in homes with multiple people in the background while in virtual classes. Goldsmith
19 Decl. ¶ 14. Domestic violence incidents involving students have increased. Id.; Dixon Decl. ¶ 8.
20 The number of students who are seeking mental health services has also increased, along with
21 reports of students experiencing depression and suicidal thoughts. Goldsmith Decl. ¶ 16; see also
22 Knox Decl. ¶¶ 17-18; Cervantes Decl. ¶ 11; Dixon Decl. ¶¶ 16-17; Cornner Decl. ¶ 12. These
23 accounts indicate that even if students have been spared infection by the virus, its harms to
24 students’ well-being have been nonetheless injurious.
25 II. CONGRESS ESTABLISHED HEERF TO MAKE EMERGENCY ASSISTANCE AVAILABLE
TO ALL STUDENTS
26
27 To address these needs, on March 27, Congress enacted the CARES Act, under which it
28 appropriated $30.75 billion to DoE “to prevent, prepare for, and respond to coronavirus,
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1 domestically or internationally.” 134 Stat. at 564. Within that amount, Congress created a new
2 program, the Higher Education Emergency Relief Fund (HEERF), for which Congress reserved
3 approximately $12.56 billion to be allocated to colleges and universities in accordance with a
4 specific funding formula. Id. §§ 18001(a)(1), 18004, at 564, 567-68. The HEERF formula
5 requires that the Secretary “shall” allocate funding to each institution as follows: 75 percent based
6 on its relative share of the full-time equivalent (FTE) enrollment of Pell Grant recipients and 25
7 percent based on its relative share of the FTE enrollment of all other students, excluding in both
8 categories students enrolled only in distance (online) learning before the coronavirus emergency
9 began. Id. § 18004(a)(1), at 567. Thus, the latter part of the formula accounts for all students not
10 previously enrolled exclusively in online learning, including those students who are not eligible
11 for financial relief under Title IV.
12 The CARES Act broadly allows higher education institutions to use HEERF “funds
13 received to cover any costs associated with significant changes to the delivery of instruction due
14 to the coronavirus” (HEERF Assistance), subject to two conditions. Id. § 18004(c), at 568. First,
15 the funds cannot be used for “payments to contactors for the provision of pre-enrollment
16 recruitment activities; endowments; or capital outlays associated with facilities related to
17 athletics, sectarian instruction, or religious worship.” Id. Second, at least 50 percent of the funds
18 must be used “to provide emergency financial aid grants to students for expenses related to the
19 disruption of campus operations due to coronavirus (including eligible expenses under a student’s
20 cost of attendance, such as food, housing, course materials, technology, health care, and child
21 care)” (HEERF Student Assistance). Id. The remaining 50 percent (HEERF Institution
22 Assistance), may be used for any costs related to the changes to delivery of instruction due to the
23 coronavirus, id., which could include additional student assistance.
24 III. DOE ISSUED CONFLICTING INTERPRETATIONS REGARDING HEERF ELIGIBILITY
25 Once the CARES Act became law, DoE initially implemented the HEERF consistent with
26 Congress’s intent with a series of three actions on or about April 9. First, when it allocated $12.56
27 billion in HEERF Assistance formula grants, including $6.28 billion in HEERF Student
28 Assistance funds, DoE correctly utilized student enrollment data without excluding students who
5
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1 are ineligible for Title IV. See RJN Exs. A, C. Second, the DoE Secretary wrote a guidance letter
2 emphasizing that higher education institutions have “significant discretion” on how to allocate the
3 HEERF Assistance funds to students, and that “each institution may develop its own system and
4 process for determining how to allocate these funds, which may include distributing the funds to
5 all students or only to students who demonstrate significant need.” RJN Ex. D (emphasis added).
6 Third, in the Recipient’s Funding Certification and Agreement (Certification) each higher
7 education institution was required to complete in order to access HEERF Student Assistance
8 funds, DoE stated that the “Secretary does not consider these individual emergency financial aid
9 grants to constitute Federal financial aid under Title IV of the HEA.” RJN Ex. E.
10 On or about April 21, DoE drastically changed its interpretation of the CARES Act, with no
11 acknowledgment of its prior position. In its guidance for HEERF Student Assistance, DoE
12 announced that “[o]nly students who are or could be eligible to participate in programs under
13 Section 484 in Title IV of the Higher Education Act of 1965, as amended (HEA), may receive
14 emergency financial aid grants,” and highlighted non-citizens among other categories of students
15 excluded. RJN Ex. G at 4. Guidance for the HEERF Institution Assistance (collectively with the
16 HEERF Student Assistance guidance, the April 21 HEERF Guidances), contains the same
17 eligibility limitations. RJN Ex. H. The DoE Secretary has since publicly reaffirmed DoE’s new
18 position to exclude certain students from receiving HEERF Assistance. See RJN Ex. I.
19 IV. THE IMPACT OF THE HEERF ELIGIBILITY REQUIREMENTS ON PLAINTIFFS
20 Before April 21, 2020, Plaintiff Districts planned to distribute HEERF Assistance funding
21 to broad segments of their population in order to stem the harms caused to their campuses as a
22 result of the pandemic. Cornner Decl. ¶ 14; Bennett Decl. ¶¶ 11-12; Buckley Decl. ¶¶ 10-12;
23 Goldsmith Decl. ¶¶ 19-20, 23; Rodriguez Decl. ¶¶ 6-7; Nguyen Decl. ¶ 10; Knox Decl. ¶ 20;
24 Mandy Decl. ¶ 8. As discussed below, DoE’s changed position has substantially disrupted those
25 plans, and has caused both short-term and long-term injuries to all Plaintiffs and their students.
26 A. The HEERF Eligibility Requirements Likely Exclude a Majority of
California Community College Students
27
28 DoE’s imposition of eligibility requirements for financial aid under Title IV to HEERF
6
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1 Student Assistance excludes broad categories of students, including citizens and non-citizens
2 alike, from the possibility of receiving emergency relief. Based on enrollment data for Spring
3 2019 students, a majority of the approximately 1.5 million California community college students
4 enrolled at the time of campus closures during the Spring 2020 session would be ineligible for
5 HEERF Student Assistance, apart from financial need. Hetts Decl. ¶ 19. These numbers include
6 students whose parents brought them into the United States as minors—“Dreamers”—and other
7 immigrant residents, disabled students, veterans, and active duty service members, many of
8 whom the Chancellor’s Office has identified as economically disadvantaged. Id. ¶ 22.
9 First, in connection with immigration status, Title IV excludes from eligibility all non-U.S.
10 citizens who are not able to provide evidence from the federal government of presence in the
11 United States for more than a temporary purpose and “the intention of becoming a citizen or
12 permanent resident.” 20 U.S.C. § 1091(a)(5); see also 34 C.F.R. § 668.33(a) (same). Plaintiffs
13 understand that DoE’s application of these requirements to HEERF Student Assistance excludes
14 broad classes of immigrant students residing in the State, including among others: (a) Dreamers
15 with or without DACA status; (b) other students with undocumented status; (c) students with
16 pending asylum applications; (d) students with Temporary Protected Status or Deferred Enforced
17 Departure (DED) status; and (e) students with U-visas (relating to victims of crime who provide
18 assistance to law enforcement agencies). Relatedly, Title IV eligibility requires possession of a
19 valid Social Security Number, unavailable to most undocumented students other than DACA
20 recipients. 20 U.S.C. § 1091(a)(4)(B); see also 34 C.F.R. § 668.32(i).
21 DoE’s imposition of Title IV’s eligibility requirements on HEERF similarly bars large
22 numbers of other community college students from receiving HEERF Assistance. These include
23 students who, among others: (a) do not have a high school diploma, General Education
24 Development (GED) certificate or equivalent, or recognized exception to these requirements; (b)
25 are enrolled only in non-credit courses; (c) have not registered with Selective Service (males 18-
26 25); (d) are also enrolled in high school; (e) have not maintained a “C” average or above by the
27 end of their second year; or (f) are in default on a federal student loan or owe any refund amount
28 on a federal student grant. See 20 U.S.C. § 1091(a)(1)-(3), (c), (d); 34 C.F.R. § 668.32.
7
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1 The Chancellor’s Office estimates that over 800,000 students are actually or effectively
2 precluded from obtaining HEERF Assistance. Hetts Decl. ¶ 19. Approximately 523,000 of these
3 students are likely ineligible due to at least one Title IV eligibility restriction. Id. Up to 5,500
4 additional students will likely have declined to provide a social security number, id. ¶ 21, without
5 which they are ineligible under DoE’s HEERF Eligibility Requirements, RJN Ex. G at 4. An
6 estimated 275,000 additional students who may be eligible for federal financial aid but have not
7 submitted the required Free Application for Federal Student Aid (FAFSA) are also likely
8 precluded, as a practical matter, from receiving HEERF Student Assistance. Hetts Decl. ¶ 20.
9 Although DoE has suggested that those who are “eligible” to apply for federal financial aid but
10 have not submitted a FAFSA are eligible for HEERF Student Assistance, DoE does not specify
11 what responsibility the colleges have to validate certain information, such as Selective Service
12 registration, or what means they have to do so. See RJN Exs. G, H; see also, e.g., Knox Decl.
13 ¶ 21. Staff also often lack the time and resources to make independent eligibility determinations
14 in time to distribute the emergency relief grants, and, thus, may err on the side of denying
15 eligibility to not run afoul of DoE’s restrictive requirements. See Knox Decl. ¶¶ 21, 25; Cornner
16 Decl. ¶ 16; Rodriguez Decl. ¶ 8. The Chancellor’s Office estimates that the total number of
17 California community college students excluded by these HEERF Eligibility Requirements
18 include more than 26,000 students with disabilities, 12,000 veterans, 1,700 active duty service
19 members, approximately 100,000 students training for essential work in health services, and over
20 80,000 students training to be first responders. Hetts Decl. ¶ 22.
21 B. The HEERF Eligibility Requirements Undermine Students’ Ability to
Participate in Remote Learning and Will Lead to Dis-enrollment
22
23 The hundreds of thousands of students who have been rendered ineligible for critical
24 emergency assistance by DoE’s unlawful eligibility requirements are among California’s most
25 economically disadvantaged and in most need of assistance. See id. (at least 150,000 students
26 estimated to be ineligible for HEERF Student Assistance are likely to qualify as economically
27 disadvantaged). Indeed, approximately half of Plaintiff Los Rios Community College District’s
28 student body qualifies as either low-income or below the poverty line. Dixon Decl. ¶ 6. Plaintiff
8
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1 State Center Community College District enrolls first generation college attendees, single
2 mothers, formerly incarcerated individuals, and at-risk foster youth, many of whom live in areas
3 where the type of internet connection needed to support remote learning does not exist. Goldsmith
4 Decl. ¶¶ 7, 13, 24; Buckley Decl. ¶ 9. Almost twenty percent of students surveyed in Plaintiff Los
5 Angeles Community College District still primarily access classes through their cell phones.
6 Cornner Decl. ¶ 9. Many California community college students face severe food and housing
7 insecurity. Knox Decl. ¶ 8; Goldsmith Decl. ¶ 15; Dixon Decl. ¶¶ 14, 15; Bennett Decl. ¶ 9;
8 Cervantes Decl. ¶ 10; Cornner Decl. ¶ 6. These students, who chose to pursue education despite
9 significant hardship and obstacles, would most benefit from each dollar of the emergency relief
10 from which they have been excluded by DoE.
11 DoE’s eligibility restrictions, thus, substantially increase the risk that many low-income
12 students will need to dis-enroll from college. In order to support themselves and their families,
13 many of Plaintiffs’ students are employed in hourly jobs outside of school, some of which have
14 been lost due to the economic devastation of the pandemic. See Bennett Decl. ¶ 7; Cervantes
15 Decl. ¶ 10. At the same time, Plaintiffs have seen rising levels of student withdrawals. Dixon
16 Decl. ¶ 19; Cornner Decl. ¶ 13; Knox Decl. ¶ 19; Goldsmith Decl. ¶ 18. While committed to
17 keeping their students engaged, Plaintiffs face the real prospect that students will dis-enroll from
18 school altogether due to financial instability, harming both the students’ personal and economic
19 opportunities, and Plaintiffs’ academic mission. Hetts Decl. ¶¶ 29-31; Goldsmith Decl. ¶ 18;
20 Dixon Decl. ¶ 20; Cornner Decl. ¶ 19; Knox Decl. ¶¶ 19, 30.
21 C. The HEERF Eligibility Requirements Harm the California Community
College System and Its Missions
22
The Board of Governors (Board) of the California Community Colleges “provide[s]
23
leadership and direction in the continuing development of the California Community Colleges as
24
an integral and effective element in the structure of public higher education in the state.” Cal.
25
Educ. Code § 70901(a). The community colleges’ mission includes offering academic and
26
vocational instruction at a lower division level to a diverse student population to enable those
27
students to advance California’s economic growth and global competitiveness, with a particular
28
9
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1 commitment—and expenditures—to promote equity and inclusion without regard to race,
2 ethnicity, national origin, or immigration status. Id. § 66010.4(a); Hetts Decl. ¶¶ 7-8.
3 The Chancellor’s Office estimates that community colleges in California stand to lose $60
4 to $80 million in enrollment fees due to the disruptions caused by the COVID-19 pandemic, id.
5 ¶ 29, which makes emergency relief to students critical to blunting the impact of anticipated loss
6 enrollment revenue. Because 70 to 90 percent of community college funding is based on student
7 enrollment factors, dis-enrollment affects the types of courses, educational programs, services,
8 and instruction Plaintiffs are able to offer future students. Id. ¶ 30; see also Cornner Decl. ¶ 19;
9 Dixon Decl. ¶ 21; Knox Decl. ¶ 30. This dis-enrollment will not only cause financial harm to the
10 community college system at a time when its resources are strained to respond to the disruption
11 caused by COVID-19, but it will deprive Plaintiffs’ classrooms of a robust and diverse student
12 body and undermine the California community college system’s goal of reducing equity gaps in
13 education and vocational readiness. Hetts Decl. ¶¶ 29-31. The Chancellor’s Office and the Board,
14 as well as districts and community colleges across the State, have and will continue to expend
15 significant administrative effort to mitigate these harms. See, e.g., id. ¶¶ 24-27.
16 In order to further the California community college system’s statewide mission to
17 promote educational opportunity for all Californians, and to foster the investment that has already
18 been made to non-Title IV eligible students, community colleges will need to divert funds toward
19 supporting those excluded students, including state funds from the Student Equity and
20 Achievement (SEA) Program. See, e.g., id. ¶¶ 32-33; Nguyen Decl. ¶ 17; Mandy Decl. ¶ 12;
21 Rodriguez Decl. ¶ 10. In turn, the Board has redirected, and may continue to redirect, funds that
22 would have been used for other educational and administrative purposes, to alleviate the impact
23 of diversions from SEA and other funding sources to provide direct emergency assistance to non-
24 Title IV eligible students. Hetts Decl. ¶ 33. Any redirection of these resources risks causing long-
25 term harm to the community college system. Id. ¶¶ 31-32. Moreover, while those and other
26 alternative sources will help in the short-term, they are not sufficient or predictable enough to
27 address the gap in relief caused by DoE’s eligibility restrictions. Cornner Decl. ¶ 17; Bennett
28 Decl. ¶ 17; Buckley Decl. ¶ 15; Goldsmith Decl. ¶ 28; Nguyen Decl. ¶¶ 17-18; Knox Decl. ¶ 15;
10
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1 Mandy Decl. ¶ 12. And, while at least one college is considering using a portion of the HEERF
2 Institution Assistance funds to supplement the HEERF Student Assistance, Bennett Decl. ¶ 16,
3 those funds are also subject to the same HEERF Eligibility Restrictions, RJN Ex. H.
4 D. Plaintiff Districts Face Legal Jeopardy If They Do Not Comply with the
HEERF Eligibility Requirements that Were Imposed After Some Colleges
5 Accepted the Terms of the Grant
6 As a condition of receiving HEERF Assistance, colleges within Plaintiff Districts are
7 required to sign a Certification that subjects the signatories to liability under enumerated statutes
8 and regulations. RJN Exs. E-F. These include regulations governing Suspension and Debarment
9 from federal funding, 2 C.F.R. §§ 180.700, 180.800. The Certifications require compliance with
10 “this Certification and Agreement, its terms and conditions, and/or all relevant provisions and
11 requirements of the CARES Act or any other applicable law.” RJN Exs. E ¶ 4(g), F ¶ 4(i).
12 At least eight colleges in Plaintiffs’ Districts executed Certifications before the April 21
13 HEERF Guidances, and—in reliance on the text of the CARES Act, DoE’s April 9 letter
14 guidance, and the language in the Certification itself—planned to make HEERF Student
15 Assistance broadly available to their student body without any DoE imposed eligibility
16 limitations. Rodriguez Decl. ¶ 7 & Exs. A-D; Bennett Decl. ¶ 13 & Ex. A; Buckley Decl. ¶ 10 &
17 Ex. A; Goldsmith Decl. ¶ 19 & Ex. A; Nguyen Decl. ¶ 10 & Ex. A. Now, however, because of the
18 HEERF Eligibility Requirements, Plaintiffs are unable to distribute HEERF Assistance to all
19 students who have been affected by campus disruptions due to the COVID-19 pandemic without
20 risking a significant loss of federal funding. See 2 C.F.R. § 180.800(b)(3) (stating federal agency
21 may debar participant based on “willful violation of a . . . requirement applicable to a public
22 agreement or transaction”).
23 LEGAL STANDARD
24 A preliminary injunction is appropriate when the plaintiffs establish that they are likely to
25 succeed on the merits, they are likely to suffer irreparable harm in the absence of preliminary
26 relief, the balance of equities tips in plaintiffs’ favor, and an injunction is in the public interest.
27 Winter v. NRDC, 555 U.S. 7, 20 (2008). A preliminary injunction is “often dependent as much on
28 the equities of [the] case as the substance of the legal issues it presents.” Trump v. Int’l Refugee
11
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1 Assistance Project, 137 S. Ct. 2080, 2087 (2017). “[S]erious questions going to the merits and a
2 balance of hardships that tips sharply towards the plaintiff can support issuance of a preliminary
3 injunction,” so long as the other preliminary injunction factors are met. All. For the Wild Rockies
4 v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011) (internal quotations omitted).
5 ARGUMENT
6 I. PLAINTIFFS ARE LIKELY TO SUCCEED ON THEIR CLAIMS THAT THE HEERF
ELIGIBILITY REQUIREMENTS ARE UNLAWFUL AND UNCONSTITUTIONAL
7
A. Because Congress Has Not Authorized the HEERF Eligibility
8 Requirements, They Are Ultra Vires and Violate the Separation of Powers
9 The Constitution “exclusively grants the power of the purse to Congress, not the President.”
10 San Francisco v. Trump, 897 F.3d 1225, 1231 (9th Cir. 2018). “[B]ecause Congress has the
11 exclusive power to spend,” if Congress “has not delegated authority to the Executive to [impose
12 funding] condition[s],” the executive branch lacks the authority to impose the conditions. Id. at
13 1233. Also, when “Congress intends to impose a condition on the grant of federal moneys, it must
14 do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The
15 executive branch, thus, cannot coopt Congress’s spending power by imposing a condition that
16 Congress did not unambiguously impose or delegate authority to impose. Cf. La. Pub. Serv.
17 Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless
18 and until Congress confers power upon it.”). Furthermore, the executive branch “may not decline
19 to follow a statutory mandate . . . simply because of policy objections.” In re Aiken Cty., 725 F.3d
20 255, 259 (D.C. Cir. 2013). As discussed below, the HEERF Eligibility Requirements cannot
21 survive under these foundational constitutional principles.
22 1. The CARES Act Does Not Impose or Incorporate Title IV’s
Eligibility Requirements to HEERF
23
There is no provision in the CARES Act that either imposes eligibility requirements on the
24
receipt of HEERF Assistance or incorporates Title IV’s eligibility requirements. Instead, the
25
CARES Act requires that the DoE Secretary shall allocate funds to higher education institutions
26
by the formula prescribed by Congress for the institutions to use “to cover any costs associated
27
with significant changes to the delivery of instruction due to the coronavirus,” subject to only two
28
12
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1 limitations. § 18004(a)(1), (c), 134 Stat. at 567-68 (emphasis added). First, the funds must not be
2 used for specified prohibited purposes—and there is no mention of Title IV ineligible students
3 being a prohibited use. Id. § 18004(c), at 568 (emphasis added). Second, at least half of the funds
4 must be distributed to students. Id. Besides those limitations, as DoE recognizes, the CARES Act
5 provides higher education institutions with the discretion to use HEERF Assistance in any way
6 they see fit to address the disruption of campus operations caused by coronavirus. See RJN Ex. D.
7 Congressional intent to not limit eligibility for HEERF is even more evident when
8 compared with other programs in the CARES Act where Congress did set eligibility criteria or
9 explicitly incorporated Title IV’s requirements. Congress, for instance, excluded certain
10 categories of individuals, including “nonresident alien individual[s],” from receiving recovery
11 rebates. § 6428(d), 134 Stat. at 335. For other programs in the CARES Act, Congress
12 incorporated Title IV’s requirements in authorizing higher education institutions to use select
13 grants authorized by Title IV to provide “emergency financial aid grants” to students with
14 unexpected expenses as a result of the COVID-19 pandemic. Id. § 3504, at 396-97. Congress
15 similarly allowed higher education institutions to make payments to affected work-study students
16 eligible under Title IV. Id. § 3505, at 397. Outside of the CARES Act, Congress has also been
17 clear when it wanted conditions to apply to all funds to higher education institutions. See, e.g., 20
18 U.S.C. §§ 1011, 1011a, 1011i, 1011m. But the Title IV eligibility requirements that DoE seeks to
19 impose on HEERF only apply to assistance authorized under Title IV. See id. § 1091(a) (only
20 applying to the Title IV student assistance programs in that subchapter).
21 Congress’s recognition of Title IV eligibility elsewhere in the CARES Act, § 3504, 134
22 Stat. at 396-97, but not with respect to HEERF, is particularly telling as it evidences an awareness
23 of those eligibility requirements that it consciously declined to adopt for HEERF. In Navajo
24 Nation v. HHS, 325 F.3d 1133 (9th Cir. 2003), by analogy, plaintiff Navajo Nation argued that
25 the Temporary Assistance for Needy Families (TANF) block grant program was subject to the
26 provisions surrounding self-determination contracts in the earlier enacted Indian Self-
27 Determination and Education Assistance Act (ISDEAA). The Ninth Circuit affirmed the district
28 court’s dismissal of plaintiff’s claim because the provisions in TANF referencing the ISDEAA
13
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1 demonstrated that “Congress was fully aware of the ISDEAA,” but nonetheless, “specifically
2 chose to invoke only the fiscal provisions of the ISDEAA rather than the section allowing tribes
3 to apply for self-determination contracts.” Id. at 1139. Likewise, here, the “incorporation of [Title
4 IV] was done with surgical precision,” id. at 1140; the only HEERF provision that mentions Title
5 IV refers just to utilizing DoE’s existing grant management “systems” to distribute aid.
6 § 18004(b), 134 Stat. at 568. The code provision describing those administrative systems, which
7 exists outside of Title IV, does not encompass or even mention Title IV’s eligibility requirements.
8 See 20 U.S.C. §§ 1018(b)(1)(C)(I) (describing “systems used to administer the Federal student
9 financial assistance programs authorized under title IV”); § 1018(b)(2)(A)(ii) & (iv),
10 (c)(1)(C)(iv), (c)(3) (similar). The inclusion of Title IV’s grant management system within
11 section 18004, without any mention of Title IV’s eligibility requirements, shows that Congress
12 intended that the latter not be incorporated into HEERF. See Navajo Nation, 325 F.3d at 1139-40.
13 2. The CARES Act Does Not Delegate Authority to DoE to Impose the
HEERF Eligibility Requirements
14
There is also no provision in the CARES Act that delegates authority to the DoE Secretary
15
to impose her own eligibility requirements on HEERF. Congress has been explicit when it
16
intended to provide the DoE Secretary with authority to establish eligibility criteria1 or impose
17
conditions2 for other higher education programs, grants, or loans. If Congress intended to delegate
18
authority to the DoE Secretary to set eligibility criteria, or for that matter limit certain students
19
from receiving HEERF Assistance, it knew how to do so, and it did not do so with respect to
20
HEERF. See Util. Air Regulatory Grp. v. EPA, 573 U.S. 302, 324 (2014) (“We expect Congress
21
to speak clearly if it wishes to assign to an agency decision of vast economic and political
22
1
23 See, e.g., 20 U.S.C. §§ 1002(a)(2)(B)(IV) (Secretary to issue regulations “establishing criteria
for the eligibility of graduate medical schools” to participate in loan programs); 1078-2(a)(3)
24 (students or parents are subject to “such other eligibility criteria as the Secretary may establish by
regulation” for loan program); 1087c(b)(2) (Secretary may require higher education institutions
25 “meet such other eligibility requirements as the Secretary shall prescribe” for loan program).
2
See, e.g., 20 U.S.C. §§ 1066b(b)(11) (Secretary may make loans to institutions “in accordance
26 with conditions prescribed by the Secretary”); 1072(a)(3) & (c)(7) (Secretary may make advances
subject to “terms and conditions” which “the Secretary determines will best carry out the
27 purposes of this section” or are “satisfactory to the Secretary”); 1082(a)(3) (Secretary may add
conditions that “the Secretary determines to be necessary” to achieve the purposes of that part);
28 see also id. § 1416(e)(1)(C) (Secretary may impose special conditions for high risk grantees).
14
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1 significance.”) (internal quotations omitted); Alcoa S.S. Co. v. Fed. Maritime Com., 348 F.2d 756,
2 758 (D.C. Cir. 1965) (“Where Congress has consistently made express its delegation of a
3 particular power, its silence is strong evidence that it did not intend to grant the power.”).
4 3. The HEERF Eligibility Requirements Are Inconsistent with the
Grant’s Formula Structure and Intended Flexibility for Higher
5 Education Institutions
6 DoE’s eligibility requirements are further inconsistent with the structure of HEERF as a
7 formula grant intended to provide higher education institutions with nearly unfettered flexibility
8 in how they may use the funds. “[F]ormula grants . . . are not awarded at the discretion of a state
9 or federal agency, but are awarded pursuant to a statutory formula.” Los Angeles v. McLaughlin,
10 865 F.2d 1084, 1088 (9th Cir. 1989); see also Providence v. Barr, 954 F.3d 23, 27 (1st Cir. 2020)
11 (recognizing that under a formula grant, an agency “is obliged to distribute funding pursuant to a
12 statutory formula”) (emphasis added). The formula “circumscribe[s] [the agency’s] discretion and
13 only an analysis of the statute itself can dictate the latitude of the questioned discretion.” State
14 Highway Com. v. Volpe, 479 F.2d 1099, 1109 (8th Cir. 1973). Even then, the terms of the statute
15 must be read narrowly to preserve the grant’s formula structure. See Los Angeles v. Barr, 941
16 F.3d 931, 942-43 (9th Cir. 2019).
17 Since there is no provision granting authority to DoE to impose eligibility requirements or
18 conditions on HEERF, DoE’s authority to do so is completely restricted. See Volpe, 479 F.2d at
19 1109. What is more, DoE’s actions here directly contradict the formula, in which Congress
20 accounted for all students who were not exclusively enrolled in online distance education prior to
21 the COVID-19 pandemic. § 18004(a)(1), 134 Stat. at 567. At the very minimum, DoE lacks the
22 authority to effectively upend that formula by imposing eligibility requirements that would
23 categorically exclude large segments of students that Congress expressly intended to be included
24 as part of that formula. See Philadelphia v. AG of the U.S., 916 F.3d 276, 290 (3rd Cir. 2019)
25 (holding immigration condition added to criminal justice formula grant unlawful when it
26 “destabilize[d] the formula nature of the grant”). Congress’s “statutory formula is not so elastic; it
27 simply does not allow,” in this case, DoE, “to impose by brute force conditions” of eligibility that
28 were not contemplated by Congress. Providence, 954 F.3d at 34-35. More fundamentally, reading
15
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1 DoE’s authority under the CARES Act so broadly would raise serious separation of powers
2 concerns, as the Constitution prohibits an agency from effectively undoing the formula mandated
3 by Congress to advance its own priorities. See Clinton v. City of New York, 524 U.S. 417, 438
4 (1998) (the Constitution does not authorize the President “to enact, to amend, or to repeal
5 statutes”); Chicago v. Barr, No. 19-3290, 2020 WL 2078395, at *17 (7th Cir. Apr. 30, 2020)
6 (agency could not “transform the highly-structured formula grant into one that vested total in the
7 Attorney General to impose barriers to the grant through his choice as to which other federal laws
8 to target as grant conditions”).
9 Not only did Congress restrict the agency’s discretion, but as DoE acknowledges, Congress
10 provided the higher education institutions with “significant discretion” to develop [their] own
11 system and process for determining how to allocate [HEERF] funds,” RJN Ex. D; see also
12 § 18004(a)(1), 134 Stat. at 567 (allowing HEERF to be used for “any costs”). In this way,
13 Congress structured HEERF in a manner typically associated with a block grant, which “permits
14 the states to administer the programs with minimal federal involvement and few procedural
15 requirements.” Rural Alaska Cmt. Action Program v. Smith, 847 F.2d 535, 536 (9th Cir. 1988);
16 see also Planned Parenthood of Ind., Inc. v. Comm’r of the Ind. State Dep’t of Health, 699 F.3d
17 962, 985 (7th Cir. 2012) (“As a general matter, flexible block grants devolve control to the states
18 over the disbursement of federal funds.”); Rodriguez v. Cuomo, 953 F.2d 33, 38 (2d Cir. 1992)
19 (the “desire to allocate funds to the states in the form of block grants” was intended so that the
20 grants “could be used efficiently in meeting the different needs of local communities”).
21 Since Congress attached minimal “strings” on how HEERF Assistance may be used,
22 besides for those explicit limits set by Congress, DoE’s authority to add its own conditions or
23 eligibility requirements to HEERF are limited, at most, to conditions that “the block-granted
24 money be used for the stated purposes.” Planned Parenthood, 699 F.3d at 984. And for grants
25 like these that provide maximum flexibility for the grantees, it is the grant recipients, not the
26 federal government, that set the eligibility requirements. Id. at 985 (“[I]f the federal law allows
27 room for state-imposed eligibility conditions, then the recipient state is free to establish its own
28 eligibility criteria”); Cuomo, 953 F.2d at 38 (“Consistent with the block grant nature of the . . .
16
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1 program, interpretive authority was placed not as it usually is in the Secretary, but instead in the
2 states themselves.”). DoE’s one-size, fits all eligibility requirements, not set by Congress, cannot
3 be squared with the HEERF grant structure that allows each grant recipient “increased flexibility
4 enabling state and local officials to devise their own . . . programs to meet their unique, local
5 needs.” Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1371 (D.C. Cir. 1990); see also
6 Chicago v. Sessions, 888 F.3d 272, 285 (7th Cir. 2018) (the imposition of uniform immigration
7 conditions on a formula grant was “inconsistent with the goal of the statute to support the needs
8 of law enforcement while providing flexibility to state and local governments”).
9 B. The HEERF Eligibility Requirements Violate the APA
10 Even if Congress had given discretion to the Secretary to impose eligibility requirements on
11 HEERF (it did not), the imposition of those requirements through the April 21 HEERF Guidances
12 must be set aside under the APA as agency actions that are “arbitrary, capricious, [and] an abuse
13 of discretion.” 5 U.S.C. § 706(2)(A).3 Under the APA, an agency must “examine the relevant data
14 and articulate a satisfactory explanation for its action.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
15 State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). DoE has failed even these minimal
16 requirements for agency action. It has offered no reasoned explanation, announced incompatible
17 explanations of student eligibility, imposed criteria unintended by Congress, failed to consider the
18 impacts of its actions, and offered a legally erroneous post hoc rationalization for its misconduct.
19 DoE has failed even to acknowledge its change in position regarding the HEERF Eligibility
20 Requirements, much less provide a “reasoned explanation.” FCC v. Fox Television Stations, Inc.,
21 556 U.S. 502, 516 (2009) (where agency changes policy, “a reasoned explanation is needed for
22 disregarding facts and circumstances that . . . were engendered by the prior policy”). On April 9,
23 DoE announced that higher education institutions have “significant discretion” to develop their
24 own process of distributing HEERF Assistance “to all students,” RJN Ex. D, and directed
25 institutions to sign a Certification to receive HEERF Assistance funds which clearly states “[t]he
26 Secretary does not consider these individual emergency financial aid grants to constitute Federal
27 3
As discussed supra at 12-17, these eligibility requirements violate the APA also because they
are “contrary to constitutional right, power, privilege, or immunity” or “in excess of statutory
28 jurisdiction, authority or limitations, or short of statutory right.” 5 U.S.C. § 706(2)(B)-(C).
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1 financial aid under Title IV of the HEA,” RJN Ex. E. In the April 21 HEERF Guidances, DoE
2 dramatically changed its position by stripping away the flexibility promised earlier and creating
3 eligibility requirements on HEERF that are tied to Title IV. RJN Exs. G, H.
4 “An agency may not . . . depart from a prior policy sub silentio.” Fox Television, 556 U.S.
5 at 515. Instead, it must “show that there are good reasons for the new policy.” Id. Where, as here,
6 the prior policy engendered “serious reliance interests”—such as the signing of certifications
7 based on the Secretary’s April 9, 2020 letter—an agency must provide “a more detailed
8 justification than what would suffice for a new policy created on a blank slate.” Id. at 515; see
9 also, e.g., Rodriguez Decl. ¶ 7; Buckley Decl. ¶ 10; Bennett Decl. ¶ 13, Goldsmith Decl. ¶ 19;
10 Nguyen Decl. ¶ 10 (all relying on prior DoE representations in signing Certification). The April
11 21 HEERF Guidances, however, provide no explanation or even acknowledgement of DoE’s
12 change from its prior position in its April 9 letter that higher education institutions had flexibility
13 to decide how to distribute HEERF Assistance to all of their students. See RJN Exs. G, H.
14 Even putting aside the Secretary’s April 9 letter, DoE’s own documents for implementing
15 HEERF are internally inconsistent as to whether Title IV applies. As discussed above, the
16 Certification higher education institutions must sign in order to receive HEERF Student
17 Assistance clearly states that those funds are not federal financial aid under Title IV. RJN Ex. E.
18 Moreover, the same HEERF Student Assistance Guidance that makes Title IV eligibility a
19 condition for students to receive payments states that the funds received by higher education
20 institutions will not be considered Title IV revenue for Title IV reporting requirements. RJN Ex.
21 G at 4 (“Funds paid directly to institutions by the Department through the HEERF will not be
22 included as revenue for 90/10 purposes.”); 34 C.F.R. § 668.14(b)(16) (requiring that any private
23 institution participating in a Title IV program receive no more than 90 percent of its revenue from
24 Title IV funds). Thus, DoE treats HEERF as governed by Title IV for purposes of student
25 eligibility but not for any other purposes. Under the APA, Defendants cannot “have it both ways.”
26 Gen. Chem. Corp. v. United States, 817 F.2d 844, 854 (D.C. Cir. 1987). Such “internal[]
27 inconsistent analys[es]” is the hallmark of arbitrary and capricious actions. See Nat’l Parks
28 Conservation Ass’n v. EPA, 788 F.3d 1134, 1141 (9th Cir. 2015).
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1 DoE’s imposition of the HEERF Eligibility Requirements is also “arbitrary and capricious”
2 because it “relied on factors which Congress has not intended it to consider, entirely failed to
3 consider an important aspect of the problem,” and “offered an explanation for its decision that
4 runs counter to the evidence before the agency.” State Farm, 463 U.S. at 43. In requiring students
5 to be eligible under Title IV, Defendants entirely failed to consider “important aspect[s] of the
6 problem,” such as the burden on students and higher education institutions to establish such
7 eligibility prior to disbursing emergency relief, as well as the impact on institutions that must
8 independently support excluded students or risk their dis-enrollment. Supra at 8-11. Further, the
9 imposition of this burden runs contrary to the evidence of Congress’s intent that was before the
10 agency. The DoE Secretary’s awareness of Congress’s intent was made manifest in her April 9
11 letter, advising college and university presidents that “the only statutory requirement is that funds
12 be used to cover expenses related to the disruption of campus operations due to coronavirus,” and
13 that each institution “may develop its own system and process for determining how to allocate
14 these funds.” RJN D. DoE’s imposition of Title IV eligibility requirements also runs counter to
15 the formula methodology that DoE itself created for HEERF, which accounts for all students not
16 previously enrolled in online (distance) learning before the COVID-19 pandemic, not just those
17 who are eligible under Title IV. See RJN Ex. C.
18 Finally, Defendants’ post hoc justification—that Congress imposed the eligibility
19 requirements, RJN Ex. I—is inconsistent with the CARES Act. Supra at 12-17. Because “that
20 flawed premise is fundamental” to DoE’s agency action, the action must be set aside regardless of
21 whether the action could have been justified as an exercise of discretion. Safe Air for Everyone v.
22 EPA, 488 F.3d 1088, 1101 (9th Cir. 2007); see also SEC v. Chenery Corp., 318 U.S. 80, 94
23 (1943) (“an order may not stand” if based on agency’s mistake of law).
24 C. The HEERF Eligibility Requirements Violate the Spending Clause
25 Under the Spending Clause of the U.S. Constitution, funding conditions may only be
26 imposed if they are “unambiguous[]” and related “to the federal interest in particular . . .
27 programs.” South Dakota v. Dole, 483 U.S. 203, 207 (1987) (internal quotations omitted). The
28 HEERF Eligibility Requirements violate both of these criteria.
19
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1 The HEERF Eligibility Requirements violate the Spending Clause’s unambiguous
2 requirement for three reasons. First, as discussed supra at 12-17, the eligibility requirements were
3 not “unambiguously” imposed by Congress. Pennhurst, 451 U.S. at 17; see also Kollaritsch v.
4 Mich. State Univ. Bd. of Trs., 944 F.3d 613, 629 (6th Cir. 2019) (“Congress ha[s] to identify any
5 conditions on its funding ‘unambiguously.’”). The HEERF statute “in no way suggests that the
6 grant of…funds is ‘conditioned’” on use of funds for Title IV eligible students. Pennhurst, 451
7 U.S. at 23. Congress, therefore, did not in “clear terms” authorize the imposition of the HEERF
8 Eligibility Requirements to satisfy the Spending Clause. Id.; Chicago, 2020 WL 2078395, at *19
9 (Congress must “speak with a clear voice” to impose conditions under the Spending Clause).
10 Second, the inconsistencies between the April 9 and April 21 guidances do not “enable the
11 [Plaintiffs] to exercise their choice knowingly, cognizant of the consequences of their
12 participation” in HEERF. Pennhurst, 451 U.S. at 17. While at first, DoE said that colleges can
13 make HEERF funds available to “all” students and that the funds are not financial aid under Title
14 IV, RJN Exs. D, E, now DoE has said that colleges cannot make HEERF available to those
15 students who are not eligible under Title IV, RJN Exs. G, H. These inconsistencies have created
16 considerable confusion among community colleges throughout the State, Hetts Decl. ¶¶ 24, 27,
17 requiring Plaintiff Districts and their colleges to reassess whether they have to change their
18 distribution plans to comply with DoE’s eligibility conditions, Knox Decl. ¶ 21; Cornner Decl.
19 ¶ 16; Bennett Decl.¶ 14; Buckley Decl. ¶ 13; Goldsmith Decl. ¶ 24; Rodriguez Decl. ¶ 8; Nguyen
20 Decl. ¶ 13; Mandy Decl. ¶¶ 9-10. This confusion is magnified by DoE’s suggestion that students
21 are eligible for Title IV although they have not submitted a FAFSA, RJN Ex. Ex. G at 4, because
22 colleges lack reliable means to verify students’ Title IV eligibility themselves, see Knox Decl.
23 ¶ 21. DoE’s “evolving interpretations” of what is required under HEERF underscore the
24 ambiguities of DoE’s imposed conditions. San Francisco v. Sessions, 349 F. Supp. 3d 924, 958
25 (N.D. Cal. 2018), appeal docketed, No. 18-17311 (9th Cir. Dec. 4, 2018).
26 Third, at least eight colleges encompassing three Plaintiff Districts have an additional
27 Spending Clause claim that the HEERF Eligibility Requirements violate the Spending Clause’s
28 prohibition on “post acceptance” conditions. Pennhurst, 451 U.S. at 25. “[L]egislation enacted
20
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1 pursuant to the spending power is much in the nature of a contract.” Id. at 17. Like with contracts,
2 grant recipients “cannot knowingly accept conditions of which they are ‘unaware’ or which they
3 are ‘unable to ascertain.’” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296
4 (2006) (quoting Pennhurst, 451 U.S. at 17). As such, the federal government cannot “surpris[e]”
5 grant recipients with funding conditions after acceptance. Pennhurst, 451 U.S. at 25. That is
6 exactly what DoE has done here. It announced that HEERF Assistance was available to all
7 students, RJN Ex. D, and asked colleges to sign certifications that expressly stated that HEERF
8 did not “constitute Federal financial under Title IV of the HEA,” RJN Ex. E. At least eight
9 colleges in Plaintiff Districts signed those certifications in reliance of the prior representations
10 made by DoE. Rodriguez Decl. ¶ 7; Bennett Decl. ¶ 13; Buckley Decl. ¶ 10; Goldsmith Decl.
11 ¶ 19; Nguyen Decl. ¶ 10. Only after doing so, did Defendants release the April 21 HEERF
12 Guidances that imposed the restrictive eligibility requirements. RJN Exs. G, H. Those colleges
13 “had no way to know at the time [they] accepted such funds” that DoE would later condition
14 HEERF on Title IV’s eligibility requirements. New York v. HHS, 414 F. Supp. 3d 475, 568
15 (S.D.N.Y. 2019) appeal docketed, No. 20-32 (2nd Cir. Jan. 3, 2020). Under Pennhurst and basic
16 contract principles, DoE’s bait and switch is invalid under the Spending Clause. See id.
17 Separately, the HEERF Eligibility Requirements violate the Spending Clause’s relatedness
18 requirement because they do not have any “nexus,” to HEERF’s purpose to allow higher
19 education institutions to cover any costs associated with the disruption of student learning due to
20 the COVID-19 pandemic. Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1214 (N.D. Cal. 2017),
21 aff’d in part, vacated in part for unrelated reasons, remanded sub. nom, San Francisco v. Trump,
22 897 F.3d 1225 (9th Cir. 2018); § 18004(a)(1), (c), 134 Stat. at 567-68. Instead, the eligibility
23 requirements are directly inconsistent with the purpose of HEERF, which is to provide flexibility
24 to higher education institutions to distribute assistance to their students as they deem fit to
25 respond to this emergency. Supra at 15-17; RJN Ex. D; see also San Francisco, 349 F. Supp. 3d
26 at 959 (immigration requirements were unrelated to grant’s purpose to provide flexibility to the
27 states through formula grants).
28
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 31 of 36
1 II. PLAINTIFFS SATISFY THE REMAINING FACTORS NECESSARY TO OBTAIN A
PRELIMINARY INUNCTION
2
A. Plaintiffs Will Suffer Irreparable Harm
3
4 The HEERF Eligibility Requirements will have an immediate and detrimental impact on
5 Plaintiffs’ academic missions, commitment to serving all student populations, and limited
6 financial resources at a time when students and staff are experiencing unprecedented disruptions
7 as a result of the COVID-19 pandemic. Plaintiffs have a strong interest in the well-being of their
8 students, who are undeniably harmed by DoE’s HEERF Eligibility Requirements. See
9 Washington v. Trump, 847 F.3d 1151, 1159, 1169 (9th Cir. 2017) (states suffered irreparable
10 injuries due, in part, to injuries to university students stemming from a ban restricting foreign
11 nationals from seven countries from entering the United States).
12 DoE’s unlawful actions have only caused fear, anxiety, depression, and stress for students
13 already facing significant food, housing, and economic insecurities. See, e.g., Dixon Decl. ¶¶ 8,
14 25; Cornner Decl. ¶¶ 6, 10-12. These emotional and psychological injuries constitute irreparable
15 harm. See, e.g., Chalk v. U.S. Dist. Court Cent. Dist. of Cal., 840 F.2d 701, 710 (9th Cir. 1988);
16 Norsworthy v. Beard, 87 F. Supp. 3d 1164, 1192 (N.D. Cal. 2015). DACA recipients and students
17 below the poverty line are among those most harmed by DoE’s eligibility restrictions. Dixon
18 Decl. ¶¶ 6, 25; Goldsmith Decl. ¶ 24; Buckley Decl. ¶ 9. DoE’s actions will likely lead to a loss
19 of enrollment of non-Title IV eligible students unable to continue their education, which will
20 harm these vulnerable students’ opportunities and long-term success. Hetts Decl. ¶¶ 29-31; Knox
21 Decl. ¶¶ 19, 30; Dixon Decl. ¶ 20; Cornner Decl. ¶ 19. This “loss of opportunity to pursue one’s
22 chosen profession constitutes irreparable harm,” and is only made worse by “young age and
23 fragile economic status.” Ariz. Dream Act Coal. v. Brewer, 855 F.3d 957, 978 (9th Cir. 2017).
24 Thus, the unlawful conditions imposed by the Guidances threaten to turn the existing
25 achievement gap for the disproportionately economically disadvantaged students who comprise
26 much of Plaintiffs’ student body into an insurmountable chasm. Goldsmith Decl. ¶ 26.
27 Defendants’ “constitutional violation alone, coupled with the damages incurred,” from loss
28 of enrollment revenue and potential future funding also “suffice to show irreparable harm.” Am.
22
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 32 of 36
1 Trucking Ass’ns, Inc. v. Los Angeles, 559 F.3d 1046, 1058-59 (9th Cir. 2009). The scope of this
2 dis-enrollment, likely substantial, exacerbates “budget uncertainty” as Districts are left unsure of
3 their ability to offer the same number and variety of classes, educational programs and student
4 support services for the next school year. Knox Decl. ¶ 30, Cornner Decl. ¶ 19, Bennett Decl.
5 ¶ 10, Rodriguez Decl. ¶ 10; Sullivan Decl. ¶ 9; see Santa Clara v. Trump, 250 F. Supp. 3d 497,
6 537 (N.D. Cal. 2017) (federal executive order interfering with counties’ ability to budget, plan for
7 the future, and properly serve their residents constituted a basis for irreparable harm). The injury
8 to Plaintiffs’ investment in their students and their educational missions to serve as an accessible
9 low-cost higher education option for the diverse range of students is also irreparable. See, e.g.,
10 Hetts Decl. ¶ 35; see also Washington, 847 F.3d at 1159, 1168-69 (injuries that harmed “teaching
11 and research missions” of universities constituted substantial and irreparable injuries); Regents of
12 the Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1046 (N.D. Cal. 2018) (university and entity
13 plaintiffs “demonstrated that they face irreparable harm as they begin to lose valuable students . . .
14 in whom they have invested” and harm to their “organization interests” from DACA rescission).
15 Additionally, injuries to “sovereign interests and public policies” are irreparable. Kansas
16 v. United States, 249 F.3d 1213, 1227 (10th Cir. 2001). The California Legislature has established
17 policies designed to make the community college system accessible to all students in California.
18 See, e.g., Cal. Educ. Code §§ 66251 (affording all persons “equal rights and opportunities in the
19 postsecondary educational institutions of the state”), 68130.5 (exempting students from paying
20 nonresident tuition at community colleges based on in-state educational attendance rather than
21 residence or immigration status), 78211.5 (providing effective core matriculation services “to
22 increase California community college student access”). California has created programs to
23 provide financial aid to non-Title IV eligible students, including DACA recipients, reflecting their
24 commitment to provide an equal access to education for those individuals. See, e.g., id. §§ 69430-
25 460 (provisions surrounding Cal Grant financial aid), 76396.3 (California College Promise
26 Program waives some or all fees for first-time community college students enrolled fulltime,
27 including Dreamers). Those policies are undermined if non-Title IV eligible students are unable
28 to continue enrollment due to the disruption caused by the COVID-19 pandemic, in conjunction
23
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 33 of 36
1 with a lack of relief available to them by DoE to address that disruption.
2 In order to try to cover the gap caused by DoE’s eligibility restrictions and mitigate the
3 harm to the community colleges’ mission and interests due to loss of enrollment, Plaintiffs will
4 have to strain limited resources, causing additional irreparable harm to Plaintiffs. See, e.g., Hetts
5 Decl. ¶¶ 31-35; Rodriguez Decl. ¶ 10; Cornner Decl. ¶¶ 13, 19; see also Texas v. United States,
6 809 F.3d 134, 186 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016)
7 (impact on state’s resources caused by federal program enabling certain immigrants to obtain
8 drivers’ licenses constituted irreparable harm); Santa Clara, 250 F. Supp. 3d at 537 (federal
9 executive order requiring counties to take steps to mitigate the risk of losing millions of dollars in
10 federal funding, which included placing funds in reserve and making cuts to services, constituted
11 irreparable harm). That redirection of resources is insufficient to provide non-Title IV eligible
12 students with the relief that they would have been provided but for DoE’s eligibility restrictions.
13 See, e.g., Rodriguez Decl. ¶ 10; Mandy Decl. ¶ 12. Besides, the redirection will strip funds away
14 from other community college priorities to reduce equity and achievement gaps among
15 traditionally underrepresented student groups. Hetts Decl. ¶¶ 32-33, 35; Nguyen Decl. ¶ 18;
16 Mandy Decl. ¶ 12. Alternatively, if the Districts decide to provide assistance to non-Title IV
17 eligible students in defiance of the HEERF Certification, they face legal jeopardy, including but
18 not limited to, the debarment of receiving all federal funds. 2 C.F.R. § 180.800. Whatever choice
19 Plaintiffs make, they will be harmed. See Am. Trucking Ass’ns, 559 F.3d at 1057-58 (a party faces
20 an irreparable injury when it is harmed no matter what choice it makes).
21 B. The Public Interest Weighs Heavily in Favor of Provisional Relief
22 The balance of the equities and the public interest merge when the government is a party.
23 Nken v. Holder, 556 U.S. 418, 435 (2009). In assessing these factors, courts consider the impacts
24 of the injunction on nonparties as well. See League of Wilderness Defs./Blue Mountains
25 Biodiversity Project v. Connaughton, 752 F.3d 755, 766 (9th Cir. 2014). The public interest in
26 responding to the COVID-19 pandemic weighs overwhelmingly in favor of an injunction here. As
27 discussed supra at 3-4, the challenges caused by the pandemic have contributed to heightened
28 levels of stress and anxiety in California community college students who were already struggling
24
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 34 of 36
1 to meet their everyday needs, some of whom are living at or below the federal poverty line.
2 Congress specifically responded to this crisis by making HEERF Assistance available to all
3 students to mitigate the disruption that the pandemic has caused to these students’ education and
4 lives. See supra at 4-5. An injunction is needed to preserve this congressional intent, as the
5 “public . . . has an interest in ensuring that statutes enacted by their representatives are not
6 imperiled by executive fiat.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 779 (9th Cir.
7 2018) (quotations omitted); see also San Francisco, 897 F.3d at 1244 (upholding injunction
8 against imposition of immigration conditions on federal grants because “the public interest cannot
9 be disserved by an injunction that brings clarity to all parties and to citizens dependent on public
10 services”).
11 Supporting students’ continued education is also in the public interest. Meyer v. Nebraska,
12 262 U.S. 390, 400 (1923) (“The American people have always regarded education and acquisition
13 of knowledge as matters of supreme importance which should be diligently promoted.”). Lack of
14 access to HEERF Student Assistance at this critical time leaves students in need of financial relief
15 with the difficult choice of having to drop out of school, resulting in overall lost economic
16 opportunity. Hetts Decl. ¶¶ 29-31; Dixon Decl. ¶ 20; Cornner Decl. ¶ 13.
17 Conversely, Defendants “cannot suffer harm from an injunction that merely ends an
18 unlawful practice . . . .” Rodriguez v. Robbins, 715 F.3d 1127, 1145 (9th Cir. 2013). In fact, an
19 injunction here would only require DoE to implement HEERF in the manner that it intended
20 originally—making assistance available for all students, providing flexibility to higher education
21 institutions to distribute funds, and treating HEERF differently than Title IV. RJN Exs. D, E.
22 COVID-19 does not differentiate between those students who are eligible or ineligible for
23 particular federal student assistance; the DoE should not meet such a sweeping public health
24 crisis by imposing an unlawful and arbitrary limitation on assistance for students at a time they
25 need it most.
26 CONCLUSION
27 For the foregoing reasons, Plaintiffs request this Court grant their Motion.
28
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 35 of 36
1 Dated: May 13, 2020 Respectfully Submitted,
2 XAVIER BECERRA
Attorney General of California
3 CHERYL FEINER
MICHAEL NEWMAN
4 Senior Assistant Attorneys General
CHRISTINE CHUANG
5 Supervising Deputy Attorney General
JULIA HARUMI MASS
6 JASLEEN SINGH
SHUBHRA SHIVPURI
7 JOSHUA SONDHEIMER
8 /s/ Lee I. Sherman
9 LEE I. SHERMAN
Deputy Attorneys General
10 Attorneys for Plaintiffs Eloy Ortiz Oakley
and Board of Governors of the California
11 Community Colleges
12 /s/ John Shupe /s/ JP Sherry
13 JOHN SHUPE JP SHERRY
Lynch and Shupe, LLP General Counsel
14 Attorney for Plaintiff Foothill-De Anza Attorney for Plaintiff Los Rios
Community College District Community College District
15
16 /s/ Jeffrey M. Prieto /s/ Matthew T. Besmer
17 JEFFREY M. PRIETO MATTHEW T. BESMER
General Counsel General Counsel
18 Attorney for Plaintiff Los Angeles Attorney for Plaintiff State Center
Community College District Community College District
19
20 /s/ Ljubisa Kostic
21 LJUBISA KOSTIC
Director, Legal Services & EEO
22 Attorney for Plaintiff San Diego
Community College District
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Case 4:20-cv-03215-YGR Document 16 Filed 05/13/20 Page 36 of 36
1 ATTESTATION OF SIGNATURES
2 I, Lee I. Sherman, 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
/s/ Lee I. Sherman
6
LEE I. SHERMAN
7 Deputy Attorney General
Attorney for Plaintiffs Eloy Ortiz
8 Oakley and Board of Governors of
the California Community Colleges
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