Motion for Preliminary Injunction — State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 8
Summary
State of Washington's Motion for Preliminary Injunction, Document 8, filed July 23, 2020, in State of Washington v. Betsy DeVos and the United States Department of Education, No. 2:20-cv-01119-MLP, in the United States District Court Western District of Washington at Seattle. The motion is noted for August 14, 2020, with oral argument requested. Its introduction states that Congress appropriated $16.5 billion in the CARES Act for elementary and secondary schools, and argues that the Department's interim final rule (Rule) shifts emergency funding from public schools to private schools. The table of contents lists argument headings that the Rule exceeds the Department's statutory authority, is arbitrary and capricious, and violates Separation of Powers and the Spending Clause.
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Cite this document
“Motion for Preliminary Injunction — State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 8.”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/preliminary-injunction-state-of-washington-v-devos-no-2-20-cv-01119-w-344894e130/
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Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 1 of 35
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UNITED STATES DISTRICT COURT
7 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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STATE OF WASHINGTON, NO. 2:20-cv-01119-MLP
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Plaintiff, STATE OF WASHINGTON’S
10 MOTION FOR PRELIMINARY
v. INJUNCTION
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BETSY DeVOS, in her official capacity as NOTED FOR: August 14, 2020
12 Secretary of the United States Department of
Education; and the UNITED STATES ORAL ARGUMENT REQUESTED
13 DEPARTMENT OF EDUCATION, a federal
agency,
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Defendants.
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STATE OF WASHINGTON’S MOTION FOR ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 2 of 35
1 TABLE OF CONTENTS
2 I. INTRODUCTION ............................................................................................................. 1
3 II. STATUTORY AND FACTUAL BACKGROUND ......................................................... 2
4 A. COVID-19 ................................................................................................................. 2
5 B. The Coronavirus Aid, Relief, and Economic Security Act........................................ 3
6 C. The Department’s Guidance and Public Remarks ..................................................... 4
7 D. The Department’s Interim Final Rule ........................................................................ 4
8 E. Injury to the State of Washington .............................................................................. 5
9 III. ARGUMENT .................................................................................................................... 7
10 A. Legal Standards.......................................................................................................... 7
11 B. Washington Is Likely to Succeed on the Merits of Its Claims .................................. 7
12 1. The Rule exceeds the Department’s statutory authority .................................... 8
13 a. Congress did not delegate authority to the Department to reallocate
funds for equitable services ........................................................................ 8
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(1) The plain language of section 18005 forecloses any
15 rulemaking authority ........................................................................ 8
16 (2) The Department has no implicit rulemaking authority .................... 9
17 (3) The Department lacks authority to interpret section 18005
because it is an appropriations statute ............................................ 10
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b. No deference is warranted under Chevron or Skidmore ........................... 11
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(1) No deference is warranted under Chevron ..................................... 11
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(2) Even if Skidmore deference applied, the Rule lacks any
21 persuasive value to have any application ....................................... 13
22 2. The Rule is arbitrary and capricious ................................................................ 14
23 a. The Rule represents an unexplained inconsistency .................................. 15
24 b. The Rule fails to consider important aspects of the problem ................... 16
25 c. The Rule is so implausible it cannot be ascribed to a difference in
view or the product of agency expertise ................................................... 17
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STATE OF WASHINGTON’S MOTION FOR i ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 3 of 35
1 3. The Rule violates Separation of Powers .......................................................... 17
2 4. The Rule violates the Spending Clause ............................................................ 18
3 C. Washington Will Suffer Irreparable Harm Absent Preliminary Relief ................... 19
4 1. Curtailing Washington’s proprietary interest in using funds for students
most in need of essential services .................................................................... 20
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2. Interfering with Washington’s sovereign interests and educational
6 mission ............................................................................................................. 20
7 3. Harming Washington’s Public Schools and Students ...................................... 21
8 4. Increasing administrative burden on Washington’s institutions ...................... 23
9 5. Irreparable constitutional violations ................................................................. 23
10 D. Equity and Public Interest Strongly Favor an Injunction ........................................ 23
11 IV. CONCLUSION ............................................................................................................... 24
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STATE OF WASHINGTON’S MOTION FOR ii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 4 of 35
1 TABLE OF AUTHORITIES
2 Cases
3 Adams v. U.S. Forest Serv.,
671 F.3d 1138 (9th Cir. 2012) ............................................................................................... 13
4
Alfred L. Snapp & Son, Inc. v. Puerto Rico,
5 458 U.S. 592 (1982)......................................................................................................... 20, 22
6 Arizona Dream Act Coal. v. Brewer,
757 F.3d 1053 (9th Cir. 2014) ............................................................................................... 20
7
Ass’n of Civilian Technicians v. Fed. Labor Relations Auth.,
8 370 F.3d 1214 (D.C. Cir. 2004) ............................................................................................. 10
9 Brown v. Kramer,
49 F. Supp. 359 (M.D. Pa. 1943) ........................................................................................... 20
10
California v. Azar,
11 911 F.3d 558 (9th Cir. 2018) ........................................................................................... 19, 20
12 California v. Health & Human Servs.,
281 F. Supp. 3d 806 (N.D. Cal. 2017), aff’d in pertinent part, remanded sub nom.
13 Azar, 911 F.3d 558 (9th Cir. 2018)........................................................................................ 22
14 Charles v. Verhagen,
348 F.3d 601 (7th Cir. 2003) ................................................................................................. 19
15
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
16 467 U.S. 837 (1984)............................................................................................................... 11
17 Chinook Indian Nation v. U.S. Dep’t of Interior,
435 F. Supp. 3d 1130 (W.D. Wash. 2020) ...................................................................... 13, 15
18
City & Cty. of San Francisco v. Trump,
19 897 F.3d 1225 (9th Cir. 2018) ......................................................................................... 17, 18
20 City of Los Angeles v. Barr,
941 F.3d 931 (9th Cir. 2019) ................................................................................................. 10
21
City of Philadelphia v. Attorney Gen. of U.S.,
22 916 F.3d 276 (3d Cir. 2019), reh’g denied (June 24, 2019) .................................................. 10
23 Clinton v. City of New York,
524 U.S. 417 (1998)............................................................................................................... 17
24
Diaz v. Brewer,
25 656 F.3d 1008 (9th Cir. 2011) ............................................................................................... 24
26
STATE OF WASHINGTON’S MOTION FOR iii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 5 of 35
1 Disney Enters., Inc. v. VidAngel, Inc.,
869 F.3d 848 (9th Cir. 2017) ................................................................................................... 7
2
DLS Precision Fab LLC v. U.S. Immigration & Customs Enf’t,
3 867 F.3d 1079 (9th Cir. 2017) ............................................................................................... 10
4 Drakes Bay Oyster Co. v. Jewell,
747 F.3d 1073 (9th Cir. 2014) ............................................................................................... 23
5
E. Bay Sanctuary Covenant v. Trump,
6 354 F. Supp. 3d 1094 (N.D. Cal. 2018), aff’d, 950 F.3d 1242 (9th Cir. 2020) ..................... 21
7 E. Bay Sanctuary Covenant v. Trump,
909 F.3d 1219 (9th Cir. 2018) ............................................................................................... 21
8
Elrod v. Burns,
9 427 U.S. 347 (1976)............................................................................................................... 23
10 F.C.C. v. Fox Television Stations, Inc.,
556 U.S. 502 (2009)............................................................................................................... 15
11
Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp.,
12 28 F.3d 1268 (D.C. Cir. 1994) ............................................................................................... 21
13 FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000)............................................................................................................... 11
14
Gonzales v. Oregon,
15 546 U.S. 243 (2006)....................................................................................................... 8, 9, 11
16 Hernandez v. Sessions,
872 F.3d 976 (9th Cir. 2017) ............................................................................................. 7, 24
17
Idaho v. Coeur d’Alene Tribe,
18 794 F.3d 1039 (9th Cir. 2015) ............................................................................................... 20
19 In re Aiken County,
725 F.3d 255 (D.C. Cir. 2013) ............................................................................................... 18
20
La. Pub. Serv. Comm’n v. F.C.C.,
21 476 U.S. 355 (1986)................................................................................................................. 8
22 League of Women Voters of the U.S. v. Newby,
838 F.3d 1 (D.C. Cir. 2016) ............................................................................................. 21, 24
23
McCleary v. State of Wash.,
24 173 Wn.2d 477, 269 P.3d 227 (2012) .................................................................................... 21
25 Melendres v. Arpaio,
695 F.3d 990 (9th Cir. 2012) ................................................................................................. 23
26
STATE OF WASHINGTON’S MOTION FOR iv ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 6 of 35
1 Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983)................................................................................................................. 15
2
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs.,
3 545 U.S. 967 (2005)............................................................................................................... 15
4 Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012)......................................................................................................... 18, 19
5
New York v. United States,
6 505 U.S. 144 (1992)............................................................................................................... 19
7 Oakley v. DeVos,
No. 20-CV-03215-YGR, 2020 WL 3268661 (N.D. Cal. June 17, 2020) .............................. 18
8
Oregon v. Trump,
9 406 F. Supp. 3d 940 (D. Or. 2019) ........................................................................................ 17
10 Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981)............................................................................................................. 18, 19
11
Pennsylvania v. Trump,
12 351 F. Supp. 3d 791, 828 (E.D. Pa. 2019), aff’d, 930 F.3d 543 (3d Cir. 2019), as
amended (July 18, 2019), rev’d and remanded sub nom. Little Sisters of the Poor
13 Saints Peter & Paul Home v. Pa., No. 19-431, 2020 WL 3808424 (U.S. July 8, 2020)....... 22
14 Ramirez v. U.S. Immigration & Customs Enf’t,
310 F. Supp. 3d 7 (D.D.C. 2018) ........................................................................................... 24
15
Russello v. United States,
16 464 U.S. 16 (1983)................................................................................................................... 9
17 Sierra Club v. Trump,
929 F.3d 670 (9th Cir. 2019) ................................................................................................. 11
18
Skidmore v. Swift & Co.,
19 323 U.S. 134 (1944)............................................................................................................... 13
20 South Dakota v. Dole,
483 U.S. 203 (1987)............................................................................................................... 18
21
Stormans, Inc. v. Selecky,
22 586 F.3d 1109 (9th Cir. 2009) ............................................................................................... 23
23 Sutton v. United Air Lines, Inc.,
527 U.S. 471 (1999)................................................................................................................. 9
24
Train v. City of New York,
25 420 U.S. 35 (1975)................................................................................................................. 18
26
STATE OF WASHINGTON’S MOTION FOR v ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 7 of 35
1 Trump v. Int’l Refugee Assistance Project,
137 S. Ct. 2080 (2017)........................................................................................................... 24
2
U.S. Dep’t of Navy v. Fed. Labor Relations Auth.,
3 665 F.3d 1339 (D.C. Cir. 2012) ............................................................................................. 10
4 Valle del Sol Inc. v. Whiting,
732 F.3d 1006 (9th Cir. 2013) ............................................................................................... 21
5
Washington v. DeVos,
6 No. 2:20-CV-0182-TOR, 2020 WL 3125916 (E.D. Wash. June 12, 2020) ............................ 9
7 Washington v. U.S. Dep’t of State,
318 F. Supp. 3d 1247 (W.D. Wash. 2018) ............................................................................ 16
8
Winter v. Nat. Res. Def. Council, Inc.,
9 555 U.S. 7 (2008)............................................................................................................... 7, 24
10 Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952)............................................................................................................... 17
11
Statutes
12
5 U.S.C. § 533.............................................................................................................................. 9
13
5 U.S.C. § 706(2)(A) ............................................................................................................. 7, 15
14
5 U.S.C. § 706(2)(B) .................................................................................................................... 7
15
5 U.S.C. § 706(2)(C).................................................................................................................... 7
16
20 U.S.C. 1221e-3.................................................................................................................... 8, 9
17
20 U.S.C. 3474............................................................................................................................. 8
18
RCW 28A.150.210 .................................................................................................................... 21
19
RCW 28A.150.295 .................................................................................................................... 21
20
Other Authorities
21
.S. Department of Education, “Certification and Agreement for Funding under the
22 Education Stabilization Fund Program,”
https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf (last
23 visited July 9, 2020) ................................................................................................................. 6
24 About the Agency,
WASH. OFF. OF SUPERINTENDENT OF PUB. INSTRUCTION,
25 https://www.k12.wa.us/about-ospi/about-agency (last visited July 9, 2020)............................ 5
26
STATE OF WASHINGTON’S MOTION FOR vi ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 8 of 35
1 Coronavirus Aid, Relief, and Economic Security Act
Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020 ....................................................... passim
2
ESEA of 1965, § 1114 ................................................................................................................. 9
3
ESEA of 1965, § 1117 ........................................................................................................ passim
4
ESEA of 1965, § 1118 ................................................................................................................. 4
5
ESEA of 1965, § 8501 ......................................................................................................... 12, 14
6
HEA. CARES Act § 3513(f)........................................................................................................ 9
7
https://www.privateschoolreview.com/washington/seattle (last accessed July 13, 2020)........... 6
8
Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A),
9 https://www2.ed.gov/programs/titleiparta/index.html (last visited July 14, 2020) ................. 3
10 Johns Hopkins University & Medicine, COVID-19 Dashboard by the Center for
Systems Science and Engineering at Johns Hopkins University (JHU),
11 https://coronavirus.jhu.edu/map.html (last visited May 19, 2020) .......................................... 2
12 List of Title I, Part A Schoolwide and Targeted Assistance Schools 2019–20,
Wash. Off. of Superintendent of Pub. Instruction,
13 https://www.k12.wa.us/sites/default/files/public/titlei/pubdocs/TitleISchoolList2019-
20.xlsx (last visited July 9, 2020) ............................................................................................. 5
14
OSPI Title School List 2019-20.
15 https://www.k12.wa.us/sites/default/files/public/titlei/pubdocs/TitleISchoolList2019-
20.xlsx...................................................................................................................................... 7
16
Report Card Enrollment 2019–20 School Year,
17 DATA.WA.GOV, https://data.wa.gov/Education/Report-Card-Enrollment-2019-20-
School-Year/gtd3-scga (last visited July 9, 2020) ................................................................... 5
18
United States Government Accountability Office, A Glossary of Terms Used in the
19 Federal Budget Process,
No. GAO-05-734SP at 13 (September 2005), available at
20 https://www.gao.gov/new.items/d05734sp.pdf (last visited July 8, 2020) ............................ 11
21 Wash. Off. of Superintendent of Pub. Instruction,
Report Card Enrollment 2019–20 School Year, DATA.WA.GOV,
22 https://data.wa.gov/Education/Report-Card-Enrollment-2019-20-School-Year/gtd3-
scga (last visited July 9, 2020) ................................................................................................. 5
23
Rules
24
Rule 65(c) .................................................................................................................................. 24
25
26
STATE OF WASHINGTON’S MOTION FOR vii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 9 of 35
1 Regulations
2 85 Fed. Reg. 39,479 ..................................................................................................................... 4
3 85 Fed. Reg. 39,488 ..................................................................................................................... 4
4 Constitutional Provisions
5 U.S. Const. art. I, § 8, cl. 1................................................................................................... 17, 18
6 Wash. Const. art. IX, § 1........................................................................................................ 5, 21
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STATE OF WASHINGTON’S MOTION FOR viii ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 5th Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 474-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 10 of 35
1 I. INTRODUCTION
2 The Court should enter a preliminary injunction to prevent the United States Department
3 of Education (Department) from unlawfully funneling emergency pandemic relief funds away
4 from Washington’s public education institutions and vulnerable students who need essential
5 services that the funds would provide.
6 In late March, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act
7 (CARES Act), appropriating $16.5 billion for services to prevent and respond to the spread of
8 COVID-19 in elementary and secondary schools. Congress mandated that state and local
9 educational agencies distribute the funds “in the same manner as provided under section 1117 of
10 the ESEA of 1965,” which requires expenditures for services at private schools in proportion to
11 the “number of children from low-income families who attend private schools.”
12 Though the Department recognized in prior guidance that section 1117 governs funding
13 based on student poverty data in private schools, the Department reversed course by reallocating
14 services through an interim final rule (Rule) that requires state and local authorities to choose
15 from two formulas that do not comport with the law. Under the Rule, state and local authorities
16 can either base their expenditures on total enrollment in private schools or exclude from CARES
17 Act funding all schools that do not participate in the Title I program. Either way, the Rule shifts
18 emergency funding from public schools to private schools, depriving Washington’s public
19 education institutions and students of essential services that Congress intended to fund.
20 Washington is likely to succeed on the merits of its claims under the Administrative
21 Procedure Act and the U.S. Constitution. First, the Department exceeded its authority by issuing
22 the Rule. The CARES Act delegated no rulemaking authority to the Department, and the
23 Department’s Rule cannot be reconciled with the statutory text it purports to interpret. The
24 CARES Act is clear—funds should be expended at private schools according to how many low-
25 income students attend them—and the Department’s contrary Rule warrants no deference.
26 Second, the Rule is arbitrary and capricious because it is inconsistent with prior Department
STATE OF WASHINGTON’S MOTION FOR 1 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 11 of 35
1 guidance and is based on an interpretation so ungrounded in the text and purpose of the CARES
2 Act as to render it wholly implausible. Third, the Rule infringes on Congress’s “power of the
3 purse” by rewriting the appropriation established in the statute, so the Rule is unconstitutional
4 and should be enjoined for that reason as well.
5 Washington will suffer irreparable harm. The Rule deprives Washington’s Governor and
6 Office of Superintendent of Public Instruction (OSPI) of control over the funds that Congress
7 allocated to them. And without full and prompt availability of the emergency funds that Congress
8 allocated to them, Washington’s educational agencies will be unable to provide the services that
9 public school students urgently need to relieve the pandemic’s effects. For many students, these
10 services—including personal protective equipment, cleaning, and remote learning technology—
11 may mean the difference between continuing their education or not. By undermining support for
12 public school students, the Rule undermines the Washington’s quasi-sovereign interests and the
13 mission of Washington’s educational agencies.
14 II. STATUTORY AND FACTUAL BACKGROUND
15 A. COVID-19
16 On February 29, 2020, Washington State made its first announcement of a death from
17 COVID-19 in the United States. On the same day, Washington Governor Jay Inslee declared a
18 state of emergency in all counties in Washington. At the time, there were 66 confirmed cases of
19 COVID-19 in the United States. Crisalli Decl. Ex. 1. As of this motion, the country has gone
20 from 66 to 3.9 million reported cases and from 1 to more than 142,000 deaths. 1
21 COVID-19 particularly affected elementary and secondary schools in Washington. On
22 March 12, 2020, Governor Inslee announced closures of all public and private K-12 schools in
23 three counties, and on April 6, he announced school closures statewide. Crisalli Decl. Ex. 2.
24
25 1
Johns Hopkins University & Medicine, COVID-19 Dashboard by the Center for Systems Science and
Engineering (CSSE) at Johns Hopkins University (JHU), https://coronavirus.jhu.edu/map.html (last visited July 22,
26 2020).
STATE OF WASHINGTON’S MOTION FOR 2 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 12 of 35
1 B. The Coronavirus Aid, Relief, and Economic Security Act
2 On March 27, 2020, Congress enacted the (CARES Act). Pub. L. No. 116-136, 134 Stat.
3 281 (Mar. 27, 2020). The CARES Act appropriated $30.75 billion to the Department “to prevent,
4 prepare for, and respond to coronavirus[.].” Id., Preamble to § 18001.
5 Of the $30.75 billion, the CARES Act creates two separate funds for elementary and
6 secondary education. First, the CARES Act appropriates about $3 billion for the Governor’s
7 Emergency Education Relief (GEER) Fund, which can be used to provide emergency support to
8 local educational agencies (LEAs) significantly impacted by COVID-19, among other things.
9 Id., § 18002(c). Second, the CARES Act appropriates about $13.5 billion to the Elementary and
10 Secondary School Emergency Relief (ESSER) Fund, which provides funds to state educational
11 agencies to provide subgrants to LEAs to be used for responding to, preventing the spread of,
12 and teaching during the COVID-19 pandemic. Id., § 18003. Both funds may be distributed to
13 LEAs regardless whether they receive Title I-A funds. Id. 2
14 In section 18005(a), Congress made clear that LEAs shall provide services in the same
15 manner as provided under section 1117 of the ESEA to students and teachers in private schools:
16 “A [LEA] receiving [GEER or ESSER] funds . . . shall provide equitable services in the same
17 manner as provided under section 1117 of the ESEA of 1965 to students and teachers in non-
18 public schools, as determined in consultation with representatives of non-public schools.”
19 Section 1117 addresses concerns about private-school students from low-income
20 families not having access to similar services to meet similar needs. ESEA, § 1117(a)(2). It
21 provides services for those students on an equitable basis as for public schools participating in
22 Title I-A: “[e]xpenditures for educational services and other benefits to eligible private school
23 children shall be equal to the proportion of funds allocated to participating school attendance
24 2
Title I, part A of the ESEA provides financial assistance to local education agencies and schools with high
numbers or high percentages of children from low-income families to ensure that all children meet challenging state
25 academic standards. Improving Basic Programs Operated by Local Educational Agencies (Title I, Part A),
https://www2.ed.gov/programs/titleiparta/index.html (last visited July 22, 2020). Federal funds are allocated though
26 statutory formulas based on census poverty estimates and cost of education in each state. Id.
STATE OF WASHINGTON’S MOTION FOR 3 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 13 of 35
1 areas based on the number of children from low-income families who attend private schools.”
2 Id., §§ 1117(a)(3)(A), (a)(4)(i). Under Section 1117, expenditures for services for private-school
3 students are based on the proportion of low-income students attending private schools.
4 C. The Department’s Guidance and Public Remarks
5 For over a month after the CARES Act passage, the Department stayed silent, and school
6 superintendents and state educational agencies followed the plain language of the CARES Act,
7 understanding that funds would be allocated to services for private school students following the
8 formula set forth in section 1117. Berge Decl. ¶¶ 6-7 ; Kelly Decl. ¶¶ 12, 15 ; Posthumus Decl.
9 ¶¶ 5-6 But on April 30, the Department issued guidance stating that LEAs should distribute
10 funds for services for private school students based on the total number of enrolled students in
11 public and private schools, regardless of their income levels. Dkt. # 1-4.
12 Members of Congress from both parties expressed concerns about such a reading of the
13 CARES Act, and department heads for elementary and secondary education in several states
14 asked the Department to allow them to focus the funds where needed most. Dkts. # 1-5–1.7.
15 Instead, the Department Secretary doubled down that she would use this “particular crisis” to
16 benefit private schools. Dkt. #1-8. She responded to the educators that if they insist on acting
17 contrary to the Department’s non-binding position, they should put funds in escrow—directing
18 LEAs to delay providing services with the emergency funds during the crisis. Id.
19 D. The Department’s Interim Final Rule
20 The Department released the Rule on June 25, and it was published on July 1. 85 Fed.
21 Reg. 39,479. Rather than follow the CARES Act or the previous guidance, the Rule creates out
22 of whole cloth a choice for LEAs. First, if an LEA uses all its funds to serve only Title I-A
23 schools, it can follow the section 1117 formula that looks only to the proportion of students from
24 low-income students attending private school (“the poverty-based formula”). Id. at 39,488. In
25 that case, the Rule also subjects LEAs to the “supplement not supplant” requirement found in
26 section 1118(b)(2) of the ESEA, which prohibits LEAs from using grant funds to cover certain
STATE OF WASHINGTON’S MOTION FOR 4 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 14 of 35
1 expenditures that would normally be covered by state and local funds. Id. Otherwise, the LEA
2 must calculate the proportional share based on total enrollment participating in private schools
3 compared to the total enrollment in both public and participating private schools (“the
4 enrollment-based formula”). Id. LEAs must consult with private schools and make this choice
5 before expending funds, a process that can take months. Id.
6 E. Injury to the State of Washington
7 Washington’s constitution mandates that the State’s “paramount duty” is to “make ample
8 provision for the education of all children residing within its borders, without distinction or
9 preference on account of race, color, caste, or sex.” Wash. Const. art. IX, § 1. As such,
10 Washington serves over 1,147,000 students across 2,369 primary and secondary public schools. 3
11 The State’s public education system comprises 295 public school districts, 14 authorized charter
12 schools, and six state-tribal education compact schools. 4 Of the 2,369 primary and secondary
13 public schools, 1,594 are eligible to participate in Title I, and 1,002 participate in Title I. 5
14 In the 2019–20 academic year, public schools served 520,475 students from low-income
15 families.6 For example, as many as 45% of Washington students qualify for free or reduced-price
16 meals. Crisalli Decl. Ex. 3. Some school districts have expanded these services during school
17 closures by delivering breakfast and lunch to families’ places of residence using vans and school
18 buses. 7
19 During the 2018–19 academic year, the most recent available data indicated that 84,058
20
21 3
Report Card Enrollment 2019–20 School Year, DATA.WA.GOV, https://data.wa.gov/Education/Report-
Card-Enrollment-2019-20-School-Year/gtd3-scga (last visited July 22, 2020).
22 4
About the Agency, WASH. OFF. OF SUPERINTENDENT OF PUB. INSTRUCTION, https://www.k12.wa.us/about-
ospi/about-agency (last visited July 22, 2020).
23 5
See List of Title I, Part A Schoolwide and Targeted Assistance Schools 2019–20, Wash. Off. of Superintendent
of Pub. Instruction, https://www.k12.wa.us/sites/default/files/public/titlei/pubdocs/TitleISchoolList2019-20.xlsx (last
24 visited July 22, 2020).
6
Wash. Off. of Superintendent of Pub. Instruction, Report Card Enrollment 2019–20 School Year,
25 DATA.WA.GOV, https://data.wa.gov/Education/Report-Card-Enrollment-2019-20-School-Year/gtd3-scga (last
visited July 9, 2020).
26 7
Id.
STATE OF WASHINGTON’S MOTION FOR 5 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 15 of 35
1 K-12 students attended private schools. During the 2019–20 academic year, there were 504
2 private schools accredited by the Washington State Board of Education. In some school districts,
3 over 20% of enrolled K-12 students attend private schools. Crisalli Decl. Ex. 4. Of the 50 largest
4 cities in America, Seattle ranks third in percentage of K-12 private school attendance. Id. The
5 national average is 10 percent. Id. The average private school tuition for elementary schools in
6 Seattle is $15,927, and $19,372 for high schools.8
7 Washington’s schools have been closed since April 6 or earlier. Crisalli Decl. Ex. 2.
8 School administrators are working this summer on plans and changes to prepare for a safe
9 potential reopening in the fall. Berge Decl. ¶ 19; Kelly Decl. ¶ 34; Posthumus Decl. ¶ 18. The
10 pandemic’s disruption has left many of the State’s most vulnerable students without access to
11 services provided by public educational institutions, including educational technology, internet
12 access, supplemental after-school programs, food services, and mental health services. Berge
13 Decl. ¶ 19; Kelly Decl. ¶ 15; Posthumus Decl. ¶ 18. Each of those resources are eligible for relief
14 funding under the CARES Act. CARES Act, §§ 18002, 18003.
15 Washington applied for CARES Act funds on April 27, 2020, and on April 29,
16 Washington received approximately $216.9 million in federal aid through the ESSER Fund.
17 Kelly Decl. ¶¶ 18–19. An additional $56.8 million was awarded to Washington through the
18 GEER Fund. Of the $216.9 million, 90% will be subgranted to LEAs, and OSPI will control the
19 remaining 10%. In receiving the funds, OSPI was required to submit a Certification and
20 Agreement stating that it would comply with all applicable Federal laws, executive orders and
21 regulations and any failure may result in liability. Dkt. #1-9. 9 OSPI is responsible for supervising
22 and reporting on the use of the CARES Act funds by the LEAs. Kelly Decl. ¶ 18.
23 In essence, the enrollment-based formula shifts funds from needy public-school students
24
8
https://www.privateschoolreview.com/washington/seattle (last accessed July 22, 2020).
25 9
See also U.S. Department of Education, “Certification and Agreement for Funding under the Education
Stabilization Fund Program,” https://oese.ed.gov/files/2020/04/ESSERF-Certification-and-Agreement-2.pdf (last
26 visited July 22, 2020).
STATE OF WASHINGTON’S MOTION FOR 6 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 16 of 35
1 towards less needy private school students. By using that formula, more funds will be shifted to
2 private schools than under the usual section 1117 formula—in some cases up to seven times
3 more. Kelly Decl. ¶¶ 26, 35 ; Berge Decl. ¶¶ 11, 13, 14. Likewise, the alternative poverty-based
4 formula ultimately harms poorer students in non-Title I schools. Almost two-thirds of
5 Washington schools do not participate in Title I, yet there are many students in those schools
6 who are in low-income families and who will not be receiving the services allowed under the
7 CARES Act. See OSPI Title School List 2019-20.
8 https://www.k12.wa.us/sites/default/files/public/titlei/pubdocs/TitleISchoolList2019-20.xlsx.
9 III. ARGUMENT
10 A. Legal Standards
11 “A party can obtain a preliminary injunction by showing that (1) it is likely to succeed
12 on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the
13 balance of equities tips in [its] favor, and (4) an injunction is in the public interest.” Disney
14 Enters., Inc. v. VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (internal quotation marks and
15 citations omitted); see also Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). Under
16 the Ninth Circuit’s “sliding scale” approach, these elements, known as Winter factors, are
17 “balanced, so that a stronger showing of one element may offset a weaker showing of another.”
18 Hernandez v. Sessions, 872 F.3d 976, 990 (9th Cir. 2017) (citation omitted).
19 B. Washington Is Likely to Succeed on the Merits of Its Claims
20 The APA requires that a court “hold unlawful and set aside agency action, findings, and
21 conclusions found to be” (1) in excess of statutory authority, (2) “arbitrary, capricious, an abuse
22 of discretion, or otherwise not in accordance with law,” or (3) “contrary to constitutional right,
23 power, privilege, or immunity[.]” 5 U.S.C. §§ 706(2)(A), (B), (C). Here, the Rule exceeds the
24 Department’s delegated authority, is arbitrary and capricious, violates the Constitution, and
25 should, therefore, be set aside.
26
STATE OF WASHINGTON’S MOTION FOR 7 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 17 of 35
1 1. The Rule exceeds the Department’s statutory authority
2 An agency “literally has no power to act . . . unless and until Congress confers power
3 upon it.” La. Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 374 (1986). Congress conferred no
4 power upon the Department to reallocate funds that Congress appropriated for equitable services
5 for vulnerable students, and the Rule thus exceeds the Department’s authority.
6 a. Congress did not delegate authority to the Department to reallocate
funds for equitable services
7
(1) The plain language of section 18005 forecloses any rulemaking
8 authority
9 The Rule improperly rewrites the CARES Act to do away with the clear reference to the
10 poverty-based determination of equitable services funding provided by section 1117 of the
11 ESEA. Section 18005 of the CARES Act allows no room for the Department’s reallocation of
12 emergency funding.
13 “The starting point for this inquiry is, of course, the language” of the statutory provision
14 at issue. Gonzales v. Oregon, 546 U.S. 243, 258 (2006). The language of section 18005 lacks
15 any delegation of rulemaking authority to the Secretary. As in Gonzalez, the CARES Act “does
16 not grant” the Department “broad authority to promulgate rules.” Id. at 259. Nor can
17 “the . . . limited powers [granted to the Department], to be exercised in specific ways,” support
18 the Department’s rulemaking on this point. Id.
19 The CARES Act gives the Department specific direction for the allocation of GEER and
20 ESSER Funds: “in the same manner as provided under section 1117 of the [ESEA].” There is
21 nothing ambiguous about this direction and it cannot endow the Department with any rulemaking
22 power. Section 1117 establishes a well-known and oft-applied formula for distributing funds
23 based on student poverty levels. It is beyond the Department’s authority to issue a rule
24 reallocating CARES Act funds in a different manner than provided under section 1117.
25 The Department cites 20 U.S.C. 1221e-3 and 20 U.S.C. 3474—the general grants of
26 rulemaking authority to the Secretary—as authority for the Rule, but neither statute authorizes
STATE OF WASHINGTON’S MOTION FOR 8 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 18 of 35
1 the Department’s rulemaking. Indeed, courts have rejected the Department’s invocation of these
2 statutes when the Department sought to “impose special conditions on grants absent express
3 authority to do so.” See, e.g., Washington v. DeVos, No. 2:20-CV-0182-TOR, 2020 WL
4 3125916, at *9 (E.D. Wash. June 12, 2020) (rejecting Department’s reliance on general authority
5 under 20 U.S.C. 1221e-3 in CARES Act case).
6 The absence of rulemaking authority in section 18005 stands in sharp contrast to other
7 sections of the CARES Act that delegate rulemaking authority to agencies. For example, an
8 earlier section addressing student loan relief delegates authority for the Secretary to “waive the
9 application of . . . negotiated rulemaking” under the HEA. CARES Act § 3513(f). Another
10 section authorizes the Director of the Bureau of Prisons to engage in rulemaking to provide
11 prisoners with video visitation and exempts the Director from the notice and comment period of
12 5 U.S.C. § 533. Id. § 12003(c). Yet another section delegates to the Small Business
13 Administration an “emergency rulemaking authority.” Id. § 1114. Section 18005, on the other
14 hand, makes no reference to rulemaking whatsoever. “[W]here Congress includes particular
15 language in one section of a statute but omits it in another section of the same Act, it is generally
16 presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
17 Russello v. United States, 464 U.S. 16, 23 (1983). Congress’s intention not to delegate
18 rulemaking authority in section 18005 is clear.
19 (2) The Department has no implicit rulemaking authority
20 Courts have rejected assertions that agencies have implicit interpretive authority over one
21 area due to authority granted in another. In Gonzales, 546 U.S. 243, the Court held the Attorney
22 General lacked authority to interpret the meaning of the law even though he was delegated the
23 authority to ensure compliance with the law. Id. at 263–64. In Sutton v. United Air Lines, Inc.,
24 527 U.S. 471 (1999), the Court rejected the claim that EEOC or any other agency had authority
25 to define “disability” under the ADA when the delegating provision instructing the EEOC to
26 “issue regulations . . . to carry out this subchapter” was in a separate subchapter from the
STATE OF WASHINGTON’S MOTION FOR 9 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 19 of 35
1 definition. Id. at 478. Likewise here, the Department has no implicit authority to redefine the
2 phrase “in the same manner as provided under section 1117” to reallocate funding for services.
3 The Ninth Circuit recently rejected an agency’s unauthorized imposition of conditions
4 on grants. In City of Los Angeles v. Barr, 941 F.3d 931 (9th Cir. 2019), an official imposed
5 conditions on formula grants for JAG. Though Congress delegated general authority to the
6 official to “plac[e] special conditions on all grants, and determin[e] priority purposes for formula
7 grants,” this did not grant “broad authority to impose any condition it chooses” on the award in
8 question. Id. at 939, 942 (citing City of Philadelphia v. Attorney Gen. of U.S., 916 F.3d 276, 288
9 (3d Cir. 2019), reh’g denied (June 24, 2019)). Instead, the Court held that “[s]uch a broad
10 interpretation would be antithetical to the concept of a formula grant[.]” Barr, 941 F.3d at 942.
11 Here, Congress gave no authorization to the Department to impose conditions on or
12 reallocate grants of CARES Act funds. Section 18005 directs the Secretary to make the funds
13 available “in the same manner as provided under section 1117.” It simply does not delegate
14 rulemaking authority to the Department to rewrite or reinterpret the CARES Act to make the
15 funds available in a manner different than provided under section 1117.
16 (3) The Department lacks authority to interpret section 18005
because it is an appropriations statute
17
The Department’s interpretation is also unsupportable because agencies generally lack
18
authority to interpret appropriations statutes and courts owe no deference to their interpretations.
19
See U.S. Dep’t of Navy v. Fed. Labor Relations Auth., 665 F.3d 1339, 1348 (D.C. Cir. 2012);
20
Ass’n of Civilian Technicians v. Fed. Labor Relations Auth., 370 F.3d 1214, 1221 (D.C. Cir.
21
2004). The Department’s interpretation of the CARES Act warrants no deference as a statute
22
generally applicable to all federal agencies. DLS Precision Fab LLC v. U.S. Immigration &
23
Customs Enf’t, 867 F.3d 1079, 1087 (9th Cir. 2017).
24
An appropriations law is a “statute, under the jurisdiction of the House and Senate
25
Committees on Appropriations, that generally provides legal authority for federal agencies to
26
STATE OF WASHINGTON’S MOTION FOR 10 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 20 of 35
1 incur obligations and to make payments out of the Treasury for specified purposes.” 10
2 The statutory sections creating and implementing the ESSER are appropriations
3 provisions. The preamble to section 18001 makes an appropriation of $30.75 billion to the
4 Department, and sections 18001 through 18007 prescribe the specific purposes for which the
5 funds may be spent. Sections 18002, 18003, and 18005 define the scope of the ESSER spending
6 program. The Department lacks authority to reinterpret those sections, and its interpretation is
7 not entitled to deference.
8 b. No deference is warranted under Chevron or Skidmore
Congress’s direction that LEAs should provide services “in the same manner as provided
9
under section 1117 of the ESEA” is clear and unambiguous, so the Department’s contrary Rule
10
warrants no deference under Chevron and holds no persuasive power under Skidmore.
11
12 (1) No deference is warranted under Chevron
First, since Congress did not delegate authority to the Department to interpret sections
13
18001 to 18007 of the CARES Act, Chevron deference is inapplicable. See Gonzales, 546 U.S.
14
at 258; Sierra Club v. Trump, 929 F.3d 670, 692 (9th Cir. 2019). Even if Congress had delegated
15
such authority, however, the Rule fails under Chevron because Congress’s intent was clear in
16
directing that LEAs provide equitable services “in the same manner as provided under section
17
1117.” Under Chevron, a court uses the “traditional tools of statutory construction” to determine
18
whether “the intent of Congress is clear[.]” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
19
467 U.S. 837, 842 & n.9 (1984). The “traditional tools” include the statute’s text, history,
20
structure, and “context”—including its place among other statutes—as well as “common sense.”
21
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-3 (2000). If Congress’s intent
22
is clear, “that is the end of the matter[.]” Chevron, 467 U.S. at 842–43. Only if the statute “is
23
24
10
United States Government Accountability Office, A Glossary of Terms Used in the Federal Budget
25 Process, No. GAO-05-734SP at 13 (September 2005), available at https://www.gao.gov/new.items/d05734sp.pdf
(last visited July 22, 2020); see Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 549 (2001) (an appropriations act
26 “defines the scope of a federal spending program”).
STATE OF WASHINGTON’S MOTION FOR 11 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 21 of 35
1 silent or ambiguous with respect to the specific issue” will a court determine “whether the
2 agency’s answer is based on a permissible construction of the statute.” Id.
3 Here, the text and context of the CARES Act leave no ambiguity as to how Congress
4 intended funds should be distributed for equitable services: “in the same manner as provided
5 under section 1117 of the ESEA.” Section 1117 contains a simple formula consistently employed
6 by LEAs for decades: expenditures “shall be equal to the proportion of funds allocated to
7 participating school attendance areas based on the number of children from low-income families
8 who attend private schools.” Congress’s intent is therefore clear that LEAs should use ESSER
9 funds to provide equitable services based on the number of low-income students attending
10 private schools in their area. Neither the CARES Act nor section 1117 of the ESEA imposes or
11 authorizes the conditions in the Department’s Rule—no restriction on the schools to which LEAs
12 may provide services, no total-enrollment formula for determining expenditures, and no
13 “supplement not supplant” requirement for the use of funds.
14 Had Congress intended to impose or authorize the Department to implement a total-
15 enrollment formula for the allocation of CARES Act funds, Congress would have referred not
16 to section 1117 but to section 8501 of the ESEA. Section 8501 directs LEAs to provide equitable
17 services to all eligible private-school students, with expenditures not limited by the number of
18 low-income private-school students. The availability of section 8501 makes Congress’s choice
19 to refer to section 1117 all the clearer: ESSER funds should be distributed according to section
20 1117’s poverty-based formula, and the Department has no room to regulate otherwise.
21 Likewise, the CARES Act contains “supplement not supplant” requirements in other
22 parts but not in sections 18001 through 18007. See CARES Act §§ 3404(a)(3) (Nursing
23 Workforce Development); Pub. L. No. 116–136, 134 Stat. 281, at 736 (“Payments to States for
24 the Child Care and Development Block Grant”); id., at 738–40 (“Children and Families Services
25 Programs”). The omission of a “supplement not supplant” requirement in sections 18001 through
26
STATE OF WASHINGTON’S MOTION FOR 12 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 22 of 35
1 18007 clearly reflects Congress’s intent to not impose such a requirement on ESSER funds, and
2 the Department has no room to regulate otherwise.
3 Finally, common sense confirms Congress’s straightforward intent in referring to the
4 poverty-based formula in section 1117 of the ESEA. Congress did not intend—during a
5 pandemic when the time and resources of Washington’s educational institutions are limited—to
6 force LEAs to evaluate and choose between two unfamiliar formulas not contained in section
7 1117. Congress did not intend to retroactively impose a prior consultation requirement when
8 LEAs were authorized to spend funds in March for later reimbursement from ESSER funds. Nor
9 did Congress intend for LEAs to take up the burdensome administrative task of making sure that
10 no expenditures of CARES Act funds supplant expenditures of funds the State would otherwise
11 provide. None of these requirements is in the statute, and common sense confirms it was not
12 Congress’s intent to silently impose them in the midst of a global pandemic.
13 (2) Even if Skidmore deference applied, the Rule lacks any
persuasive value to have any application
14
15 The clarity of the CARES Act not only dooms the contrary Rule under Chevron but also
16 renders it without persuasive power under Skidmore. Though courts owe no deference to agency
17 interpretations that are “not controlling . . . by reason of their authority,” courts may still uphold
18 agency interpretations—but only to the extent they have “power to persuade.” Skidmore v. Swift
19 & Co., 323 U.S. 134, 140 (1944). Under the Skidmore framework, which is less deferential than
20 the Chevron framework, see Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142 (9th Cir. 2012), a
21 court considers “the degree of the agency’s care, its consistency, formality, and relative
22 expertness,” Chinook Indian Nation v. U.S. Dep’t of Interior, 435 F. Supp. 3d 1130, 1139 (W.D.
23 Wash. 2020). Here, the Rule fails the Skidmore standard as well, because it is a wholly
24 unpersuasive interpretation of the CARES Act.
25 The Rule is not rooted in the text of the CARES Act and thus lacks any persuasive power
26
STATE OF WASHINGTON’S MOTION FOR 13 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 23 of 35
1 as an interpretation. Neither of the formulas in the Rule can be found in the CARES Act; the
2 formula the CARES Act refers to in section 1117 of the ESEA is based on student poverty levels,
3 not enrollment, and the CARES Act provides no basis for prohibiting LEAs from using funds at
4 schools that do not receive funds under Title I. Congress could have instead referred to the
5 enrollment-based formula in section 8501 of the ESEA, but it did not. The Department failed to
6 explain why “in the same manner as provided under section 1117” could mean a manner different
7 than the one provided under section 1117.
8 The Department’s current position is inexplicably inconsistent with its prior position. In
9 guidance dated October 7, 2019, the Department affirmed the clear meaning of section 1117 of
10 the ESEA: “To calculate the proportional share for equitable services, the LEA would determine
11 the overall number of children from low-income families who reside in participating Title I
12 public school attendance areas and who attend public schools and private schools.” Crisalli Decl.
13 Ex. 5 at 15. But once Congress made ESSER funds available, the Department reversed its
14 position, proclaiming that section 1117 does not require a count of the number of children from
15 low-income families. Id.
16 Moreover, the Rule is unpersuasive because it is unreasonable. It is unreasonable to
17 expect LEAs to choose and apply an unfamiliar formula on such a short timeframe, and to
18 retroactively impose the consultation requirement as a prerequisite to decision-making when
19 many LEAs have already expended funds for which they expect to be reimbursed. In light of the
20 emergency the ESSER funds are intended to address, it is unreasonable to believe that Congress
21 intended to force LEAs between (1) diluting the funds available for all public schools under the
22 enrollment-based formula or (2) excluding non-Title I public schools under the poverty-based
23 formula. The Department’s Rule therefore cannot stand under Skidmore.
24 2. The Rule is arbitrary and capricious
The APA requires that a court “hold unlawful and set aside agency action, findings, and
25
conclusions found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in
26
STATE OF WASHINGTON’S MOTION FOR 14 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 24 of 35
1 accordance with law[.]” 5 U.S.C. § 706(2)(A). Agency action is arbitrary and capricious if the
2 agency “entirely failed to consider an important aspect of a problem, offered an explanation for
3 its decision that runs counter to the evidence before the agency, or [made a decision that] is so
4 implausible that it could not be ascribed to a difference in view or the product of agency
5 expertise.” Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
6 U.S. 29, 43 (1983). “Unexplained inconsistency” between agency actions is also “a reason for
7 holding an interpretation to be an arbitrary and capricious change . . . .” Nat’l Cable &
8 Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
9 a. The Rule represents an unexplained inconsistency
10 A change in policy is permissible under the APA only if the agency (1) displays
11 “awareness that it is changing position,” (2) shows that “the new policy is permissible under the
12 statute,” (3) “believes” the new policy is better, and (4) provides “good reasons” for the new
13 policy. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515–16 (2009). The Department
14 failed to meet these standards and cannot explain the Rule’s inconsistency with prior Department
15 guidance.
16 As explained above, the Rule is flatly inconsistent with its prior guidance of October 7,
17 2019 and thus fails the Fox factors. First, the Department showed no awareness of the change in
18 position, as there is no mention of the October 2019 guidance in the Rule or the April 2020
19 guidance. Second, the Department fails to show that the Rule is permissible under the CARES
20 Act; its reasoning accompanying the Rule claims ambiguity where there is none—in the phrase
21 “in the same manner as provided under section 1117”—and invents two formulas out of whole
22 cloth, neither one rooted in the statutory text. Third, because the Department failed to mention
23 its old policy, the Department has not manifested any belief that its new policy is better than the
24 old and has not provided good reasons for its new policy.
25 The Department’s about-face is therefore arbitrary and capricious. See Chinook Indian
26 Nation, 435 F. Supp. 3d 1130; Washington v. U.S. Dep’t of State, 318 F. Supp. 3d 1247, 1260
STATE OF WASHINGTON’S MOTION FOR 15 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 25 of 35
1 (W.D. Wash. 2018).
2 b. The Rule fails to consider important aspects of the problem
3 The Rule fails to consider an important aspect of the problem, that is: Washington’s
4 public schools have unmet needs for emergency funding due to the exigencies of the pandemic.
5 Berge Decl ¶ 14, 15.; Kelly Decl. ¶ 28.b.; Posthumus Decl. ¶ 13.b. Any dilution, delay, or denial
6 of these funds for public schools will have a significant impact on the vulnerable public school
7 students that Congress intended to help. Berge Decl. ¶ 19; Kelly Decl. ¶ 15; Posthumus Decl. ¶
8 18. Unlike Washington’s public schools, many private schools have access to and have received
9 funds under the CARES Act’s separate Paycheck Protection Program. U.S. Department of The
10 Treasury Paycheck Protection Program, https://home.treasury.gov/policy-issues/cares-
11 act/assistance-for-small-businesses/sba-paycheck-protection-program-loan-level-data (last
12 visited July 23, 2020)The Rule’s enrollment-based formula shifts funds away from needier
13 public schools to less needy private schools, while its poverty-based formula shifts funds away
14 from non-Title I public schools—which may be under equally distressing budgetary
15 emergencies—to private schools. Kelly Decl. ¶ 28a. The Rule ignores this problem and
16 exacerbates it by reallocating funds to private schools. And particularly in these urgent
17 circumstances, it is unreasonable for the Secretary to demand that objecting LEAs, under threat
18 of litigation and enforcement action, should delay their funding and put disputed funds into
19 escrow. Dkt. #1-8 at p.1.
20 The Rule fails to consider another important problematic aspect: though eligible schools
21 have been permitted since March 2020 to spend funds for later reimbursement from ESSER, the
22 Rule retroactively requires that LEAs consult with private schools before spending any funds.
23 This requirement is impossible for many LEAs, and the Department expressed no awareness of
24 the problem.
25 Finally, the Rule fails to consider the administrative burdens it imposes, particularly for
26 the supplement-not-supplant requirement. The ESSER funds are for emergency relief, and the
STATE OF WASHINGTON’S MOTION FOR 16 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 26 of 35
1 Rule forces schools to shift vital resources to ensure that emergency funds for PPE and other
2 urgent needs do not displace state funds for purposes of the supplement-not-supplant
3 requirement. Berge Decl. ¶ 19; Kelly Decl. ¶ 37; Posthumus Decl. ¶ 18.
4 c. The Rule is so implausible it cannot be ascribed to a difference in view
or the product of agency expertise
5
6 The Department’s decision to reallocate funds to private schools is implausible in light
7 of the text and purpose of the CARES Act, as explained above. The CARES Act’s reference to
8 section 1117 of the ESEA is perfectly clear—ESSER funds should be distributed according to
9 the well-known poverty-based formula that LEAs have used for decades. The Rule reinterprets
10 the reference to section 1117 to (1) impose an enrollment-based formula, or (2) exclude schools
11 that have not received Title I funds. This rewriting of the CARES Act is not grounded in any
12 agency expertise or difference in view and is thus patently implausible.
13 3. The Rule violates Separation of Powers
The Rule also violates constitutional separation-of-powers principles by improperly
14
restricting or shifting expenditures of money appropriated by Congress. The Constitution gives
15
Congress, not the Executive branch, the power to spend and to set conditions on funds. U.S.
16
Const. art. I, § 8, cl. 1; see Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952)
17
(“The President’s power, if any, to issue the order must stem either from an act of Congress or
18
from the Constitution itself.”). The Executive Branch “does not have unilateral authority” to
19
“thwart congressional will by canceling appropriations passed by Congress.” City & Cty. of San
20
Francisco v. Trump, 897 F.3d 1225, 1232 (9th Cir. 2018) (internal quotation marks and citations
21
omitted); see also Clinton v. City of New York, 524 U.S. 417, 438 (1998) (“[N]o provision in the
22
Constitution . . . authorizes the President to enact, to amend, or to repeal statutes.”). The
23
Executive Branch is without inherent power to “condition the payment of . . . federal funds on
24
adherence to its political priorities.” Oregon v. Trump, 406 F. Supp. 3d 940, 976 (D. Or. 2019).
25
Absent a specific Congressional authorization, the Department “may not redistribute or withhold
26
STATE OF WASHINGTON’S MOTION FOR 17 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 27 of 35
1 properly appropriated funds in order to effectuate its own policy goals.” City & Cty. of San
2 Francisco, 897 F.3d at 1235. The Department cannot amend or cancel duly enacted
3 Congressional appropriations by imposing, without congressional authority, its own restrictions
4 on such funds. See Train v. City of New York, 420 U.S. 35, 38, 44 (1975); In re Aiken County,
5 725 F.3d 255, 261 n.1 (D.C. Cir. 2013).
6 The Rule creates unauthorized restrictions on Congressional appropriations, where
7 Congress gave no discretion to the Department to impose such restrictions. Instead, as the
8 Department previously recognized in its October 7, 2019 guidance, the section 1117 formula
9 calls for funds to be distributing according to the number of private-school students from low-
10 income families. Crisalli Decl., Ex. 5 at pp. 14–15, 19–20. Nowhere does the CARES Act give
11 the Department discretion to conjure alternative formulas for ESSER funds not found in section
12 1117 of the ESEA. The Department took the legislative pen into its own hands and usurped
13 Congress’ power in violation of constitutional principles of separation of powers. See Oakley v.
14 DeVos, No. 20-CV-03215-YGR, 2020 WL 3268661, at *7–12 (N.D. Cal. June 17, 2020) (finding
15 likely violations of separation of powers principles and Spending Clause).
16 4. The Rule violates the Spending Clause
17 The Spending Clause, U.S. Const. art. I, § 8, cl. 1, mandates that an agency must not
18 impose conditions on federal funding that are (1) so coercive that they compel (rather than
19 encourage) recipients to comply, (2) ambiguous, (3) retroactive, or (4) unrelated to the federal
20 interest in a particular program. Nat’l Fed’n of Indep. Bus. v. Sebelius (NFIB), 567 U.S. 519,
21 575–78 (2012); South Dakota v. Dole, 483 U.S. 203, 206-08 (1987).
22 First, the Department’s Rule violates the prohibition on ambiguity. “If Congress intends
23 to impose a condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst
24 State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981). The CARES Act clearly imposes none
25 of the conditions that either of the Rule’s formulas impose. And even if there were ambiguity in
26 the CARES Act, the Spending Clause prohibits the Department’s attempt to impose new
STATE OF WASHINGTON’S MOTION FOR 18 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 28 of 35
1 conditions on Congress’s granted funds.
2 Second, the Spending Clause does not permit what the Department is attempting to do
3 here: “surprising participating States with post acceptance or ‘retroactive’ conditions” on
4 congressionally appropriated funds. Pennhurst, 451 U.S. at 25; see also NFIB, 567 U.S. at 519
5 (holding Congress cannot retroactively alter conditions of Medicaid grants to states). Once a
6 state or state entity has accepted funds pursuant to a federal spending program, the federal
7 government cannot alter the conditions attached to those funds so significantly as to
8 “accomplish[] a shift in kind, not merely degree.” NFIB, 567 U.S. at 583. Nonetheless, the
9 Department improperly surprised Washington’s educational institutions with post-acceptance
10 conditions on funds by imposing the Rule (on June 25, 2020) after OSPI executed the
11 Certification and Agreement (on April 27). Kelly Decl. ¶ ¶ 18-19, 35; see Pennhurst, 451 U.S.
12 at 25. The Department retroactively imposes two formulas that are not grounded in the text of
13 the CARES Act and also retroactively requires LEAs to consult with private schools before
14 making decisions on ESSER expenditures.
15 Finally, the Rule violates Spending Clause’s requirement that conditions be “reasonably
16 related to the purpose of the expenditure[.]” New York v. United States, 505 U.S. 144, 172 (1992).
17 The condition placed on a spending program must “share[] the same goal” as the program.
18 Charles v. Verhagen, 348 F.3d 601, 609 (7th Cir. 2003). The purpose of ESSER funds under the
19 CARES Act is to “support and prevent, prepare for, and respond to coronavirus.” CARES Act §
20 18001. The Department’s Rule is not related to that purpose but runs contrary to it by (1) shifting
21 funds from needier public schools (whose lower-income students have been impacted more
22 severely by coronavirus) to more wealthy private schools or (2) cutting out a large set of public
23 schools all together.
24 C. Washington Will Suffer Irreparable Harm Absent Preliminary Relief
25 The harm analysis “focuses on irreparability, irrespective of the magnitude of the injury.”
26 California v. Azar, 911 F.3d 558, 581 (9th Cir. 2018) (internal quotation marks omitted).
STATE OF WASHINGTON’S MOTION FOR 19 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 29 of 35
1 Irreparable harm is harm “for which there is no adequate legal remedy, such as an award of
2 damages.” Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th Cir. 2014). As
3 explained by OSPI and several school districts, the Rule is likely to cause irreparable harm to
4 Washington, its educational institutions and their mission, and Washington’s public-school
5 students. Washington’s showing of irreparable injury could not be clearer. See Brown v. Kramer,
6 49 F. Supp. 359, 363 (M.D. Pa. 1943) (taking judicial notice of state of national emergency that
7 “render[s] irreparable the injury occasioned by violations of the Acts of Congress”). 11
8 1. Curtailing Washington’s proprietary interest in using funds for students
most in need of essential services
9
10 The Rule directly curtails the control Congress gave Washington’s Governor, OSPI, and
11 LEAs over emergency funds to provide essential services to the neediest students. Washington
12 itself has a proprietary interest in those funds, as the Governor and OSPI are directly tasked with
13 administering a portion of them. OSPI is also tasked with supervising LEAs’ use of the funds. If
14 not for the Rule, Washington would distribute the funds as both they and Congress intended—
15 according to section 1117 of the ESEA, which measures funds to be shared with private schools
16 based on the number of students from low-income families at those schools. Kelly Decl. ¶ 14.
17 The injury to Washington’s proprietary interests in those funds is irreparable, because there is
18 no statutory provision that would enable Washington to recoup these funds if disbursed
19 according to Rule. See Azar, 911 F.3d 558, 581 (states’ uncompensable financial harm is
20 irreparable); Idaho v. Coeur d’Alene Tribe, 794 F.3d 1039, 1046 (9th Cir. 2015).
21 2. Interfering with Washington’s sovereign interests and educational mission
Washington has a sovereign interest in funding its constitutional commitments toward
22
23 11
Because Washington faces direct, immediate, irreparable harm as discussed in this section and in the
Complaint (Dkt. #1 ¶¶ 80–92)—not least the harms to Washington’s proprietary interests in the portions of CARES
24 Act funds which the Governor and OSPI control—Washington’s standing to sue is well grounded. See Alfred L.
Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601–02 (1982) (“As a proprietor, [a state] is likely to have the same
25 interests as other similarly situated proprietors . . . , [a]nd like other such proprietors it may at times need to pursue
those interests in court.”); Azar, 911 F.3d at 573 (states established standing by showing “that the threat to their
26 economic interest is reasonably probable”).
STATE OF WASHINGTON’S MOTION FOR 20 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 30 of 35
1 public school students, especially in times of crisis. As the Supreme Court of Washington held
2 in McCleary v. State of Wash., 173 Wn.2d 477, 546, 269 P.3d 227 (2012), Washington’s
3 constitution imposes the “paramount duty of the State to amply provide for the education of all
4 children within its borders.” See Wash. Const. art. IX, § 1. This duty requires Washington to
5 “provide an opportunity for every child” to gain a certain level of “knowledge and skills.”
6 McCleary, 173 Wn.2d at 546. In accordance with those interests, Washington has established an
7 educational mission toward providing a strong system of public education that meets the
8 educational needs of all students. See, e.g., RCW 28A.150.210 (“the state of Washington intends
9 to provide for a public school system that is able to evolve and adapt in order to better focus on
10 strengthening the educational achievement of all students”); RCW 28A.150.295 (“A general and
11 uniform system of public schools embracing the common schools shall be maintained throughout
12 the state of Washington in accordance with Article IX of the state Constitution.”).
13 By diverting emergency funds from some or all public schools to private schools, the
14 Rule interferes with Washington’s sovereign interests and mission to amply provide for the
15 education of all children—including those most in need and most affected by the coronavirus
16 pandemic in Washington’s public schools. This interference, undermining Washington’s
17 educational programs and impeding their purpose, constitutes irreparable harm. League of
18 Women Voters of the U.S. v. Newby, 838 F.3d 1, 8 (D.C. Cir. 2016) (“An organization is harmed
19 if the actions taken by [the defendant] have ‘perceptibly impaired’ the [organization’s]
20 programs.”) (internal quotation marks and citations omitted). 12
21 3. Harming Washington’s Public Schools and Students
22 Washington’s public schools were counting on receiving their equitable share of funding
23 to provide services for vulnerable students impacted by coronavirus. Berge Decl. ¶ 17;
24 12
See also Fair Emp’t Council of Greater Wash., Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276 (D.C. Cir.
1994); Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013); E. Bay Sanctuary Covenant v. Trump,
25 354 F. Supp. 3d 1094, 1116 (N.D. Cal. 2018), aff’d, 950 F.3d 1242 (9th Cir. 2020); E. Bay Sanctuary Covenant v.
Trump, 909 F.3d 1219, 1241–42 (9th Cir. 2018) (recognizing injury caused by agency policy that “frustrates [an]
26 organization’s goals”).
STATE OF WASHINGTON’S MOTION FOR 21 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 31 of 35
1 Posthumus Decl. ¶ 6. These services include personal protective equipment, enhanced cleaning,
2 and support for remote learning technology for students who could not otherwise afford it.
3 The injury to Washington’s public schools and students is irreparable. Washington is the
4 midst of an unprecedented pandemic that has given rise to extraordinary needs, and at issue are
5 emergency funds urgently appropriated by Congress. Washington’s public schools need
6 immediate and full use of these funds to purchase protective equipment, acquire remote learning
7 technology, and pay staff to handle other exigencies that have arisen during the pandemic. Berge
8 Decl. ¶ 9; Kelly Decl. ¶ 17; Posthumus Decl. ¶ 8. This is not the time to place funds in escrow
9 and wait to figure out whether the Rule is illegal, as the Secretary has asserted. Due to increasing
10 costs to provide critical services to vulnerable students, such as free and reduced-price lunches,
11 severely resource-constrained school districts are anticipating significant budget shortfalls.
12 Berge Decl. ¶ 15. The Rule’s enrollment-based formula diverts much-needed emergency relief
13 funds away from public schools, in some cases increasing the proportional share of private
14 schools from 3.4% to 20%. Berge Decl. ¶ 3; Kelly Decl. ¶ 33. Likewise, the Rule’s poverty-
15 based formula excludes schools that do not participate in Title I from receiving funds altogether,
16 even if those schools are Title I eligible. If the Rule stands, students may be unable to safely
17 obtain the education they need. Berge Decl. ¶ 14.a.; Posthumus Decl. ¶ 13.a. And to the extent
18 public schools are unable to protect the health and safety of their students due to the Rule, this
19 also constitutes irreparable harm to Washington. See Pennsylvania v. Trump, 351 F. Supp. 3d
20 791, 828 (E.D. Pa. 2019), aff’d, 930 F.3d 543 (3d Cir. 2019), as amended (July 18, 2019), rev’d
21 and remanded sub nom. Little Sisters of the Poor Saints Peter & Paul Home v. Pa., No. 19-431,
22 2020 WL 3808424 (U.S. July 8, 2020) (“the States also stand to suffer injury to their interest in
23 protecting the safety and well-being of their citizens”); Snapp, 458 U.S. at 607 (“[A] state has a
24 quasi-sovereign interest in the health and well-being—both physical and economic—of its
25 residents in general.”); California v. Health & Human Servs., 281 F. Supp. 3d 806, 830 (N.D.
26 Cal. 2017), aff’d in pertinent part, remanded sub nom. Azar, 911 F.3d 558 (9th Cir. 2018)
STATE OF WASHINGTON’S MOTION FOR 22 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 32 of 35
1 (finding irreparable injury based in part on “what is at stake: the health of Plaintiffs’ citizens and
2 Plaintiffs’ fiscal interests”).
3 4. Increasing administrative burden on Washington’s institutions
4 The Rule imposes significant administrative burdens that the Department severely
5 underestimates, when districts are already “[under]staffed and overworked . . . in the midst of
6 the pandemic. Berge Decl. ¶ 16; Posthumus Decl. ¶ 15. First, it forces OSPI and LEAs to develop
7 and implement novel formulas and set of criteria for funding of services, despite the readily
8 available and familiar formula under section 1117 of the ESEA. Second, the compressed
9 timeframe for developing and implementing criteria and distributing emergency funding is likely
10 to give rise to disputes and litigation with private schools who disagree with OSPI’s and LEAs’
11 actions. Finally, for some LEAs that have already made expenditures in expectation of
12 reimbursement, it may be impossible to comply with the Rule’s provision requiring prior
13 consultation with private schools. All these burdens are compounded by the emergency
14 circumstances and public schools’ urgent need for the funds.
15 5. Irreparable constitutional violations
16 Finally, the constitutional violations—coupled with the concrete harms to Washington’s
17 proprietary interests, sovereign interests, mission, administrative burden, and students also
18 discussed above—establish irreparable harm. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138
19 (9th Cir. 2009) (“constitutional violations cannot be adequately remedied through damages” and
20 therefore generally constitute irreparable harm); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th
21 Cir. 2012) (“It is well established that the deprivation of constitutional rights ‘unquestionably
22 constitutes irreparable injury.’”) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)).
23 D. Equity and Public Interest Strongly Favor an Injunction
24 When the government is a party, the third and fourth Winter factors merge. Drakes Bay
25 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “The purpose of such interim
26 equitable relief is not to conclusively determine the rights of the parties, but to balance the
STATE OF WASHINGTON’S MOTION FOR 23 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 33 of 35
1 equities as the litigation moves forward.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct.
2 2080, 2087 (2017) (internal citations omitted). The principal consideration concerns the extent
3 of the “public consequences” attendant to the stay of the Rule. Ramirez v. U.S. Immigration &
4 Customs Enf’t, 310 F. Supp. 3d 7, 32 (D.D.C. 2018) (quoting Winter, 555 U.S. at 24); see also
5 Hernandez, 872 F.3d at 996. Here, the public consequences strongly favor a stay.
6 “There is generally no public interest in the perpetuation of unlawful agency action. To
7 the contrary, there is a substantial public interest in having governmental agencies abide by the
8 federal laws that govern their existence and operations.” League of Women Voters, 838 F.3d at
9 12 (internal quotation marks and citations omitted). The Rule violates the APA, and it imposes
10 significant harms to Washington’s educational institutions and the students they serve. It disrupts
11 the equitable balance that Congress established for expenditures of CARES Act funds. The
12 public interest favors protecting Washington’s ability to serve vulnerable students so they can
13 safely continue to receive education during the pandemic, as Congress intended.
14 Preserving the status quo would not harm the Department, and refraining from enforcing
15 the Rule will cost it nothing. See Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir. 2011) (court
16 may waive Rule 65(c) bond requirement). Washington merely seeks to keep in place the classic
17 funding formula provided under section 1117 of the ESEA—the same formula that the
18 Department recognized as recently as October 2019. The requested stay generates no negative
19 public consequences, but allowing the Rule to stand imposes significant public harm.
20 IV. CONCLUSION
21 For the foregoing reasons, the State of Washington requests that the Court preliminarily
22 enjoin Defendants from implementing or enforcing the Rule.
23
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STATE OF WASHINGTON’S MOTION FOR 24 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 34 of 35
1 DATED this 23rd day of July, 2020.
2 ROBERT W. FERGUSON
Attorney General of Washington
3
4 s/ Paul M. Crisalli
PAUL M. CRISALLI, WSBA No. 40681
5 SPENCER W. COATES, WSBA No. 49683
JEFFREY T. SPRUNG, WSBA No. 23607
6 R. JULY SIMPSON, WSBA No. 45869
Assistant Attorneys General
7 800 Fifth Avenue, Suite 2000
Seattle, WA 98104-3188
8 (206) 464-7744
paul.crisalli@atg.wa.gov
9 spencer.coates@atg.wa.gov
jeff.sprung@atg.wa.gov
10 july.simpson@atg.wa.gov
Attorneys for Plaintiff State of Washington
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STATE OF WASHINGTON’S MOTION FOR 25 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
Case 2:20-cv-01119-BJR Document 8 Filed 07/23/20 Page 35 of 35
1 DECLARATION OF SERVICE
2 I declare that I caused a copy of the foregoing document to be served by:
3 Hand-delivered:
4 U.S. Attorney’s Office
5 700 Stewart Street, Suite 5220
Seattle, WA 98101
6
FedEx Overnight:
7
Betsy DeVos
8
Secretary of U.S. Department of Education
9 U.S. Department of Education
Department of Education Building
10 400 Maryland Avenue SW
Washington, DC 20202-1475
11
U.S. Department of Education
12
Department of Education Building
13 400 Maryland Avenue SW
Washington, DC 20202-1475
14
DATED this 23rd day of July 2020, at Seattle, Washington.
15
16 /s/ Paul M Crisalli
PAUL M. CRISALLI, WSBA No. 40681
17 Assistant Attorney General
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STATE OF WASHINGTON’S MOTION FOR 26 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
PRELIMINARY INJUNCTION 800 Fifth Avenue, Suite 2000
NO. 2:20-cv-01119-MLP Seattle, WA 98104-3188
(206) 464-7744
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