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Home Source documents Reply Memorandum of Law in Support of Motion, State of New York et al. v. U.S. Department of Education, No. 1:25-cv-02990 (S.D.N.Y.), Doc. 67 (April 29, 2025)

Reply Memorandum of Law in Support of Motion, State of New York et al. v. U.S. Department of Education, No. 1:25-cv-02990 (S.D.N.Y.), Doc. 67 (April 29, 2025)

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  Case 1:25-cv-02990-ER      Document 67   Filed 04/29/25   Page 1 of 21



                 UNITED STATES DISTRICT COURT
            FOR THE SOUTHERN DISTRICT OF NEW YORK


STATE OF NEW YORK, et al.,

                      Plaintiffs,

      v.                                   Case No. 1:25-cv-02990 (ER)(BCM)

U.S. DEPARTMENT OF EDUCATION, et al.,

                      Defendants.




      PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN FURTHER
      SUPPORT OF MOTION FOR A PRELIMINARY INJUNCTION
           Case 1:25-cv-02990-ER                      Document 67               Filed 04/29/25              Page 2 of 21




                                                  TABLE OF CONTENTS


TABLE OF AUTHORITIES ............................................................................................. ii

INTRODUCTION ............................................................................................................. 1

ARGUMENT ..................................................................................................................... 2

          I.         THE RESCISSION LETTER IS FINAL AGENCY ACTION RIPE
                     FOR JUDICIAL REVIEW ........................................................................ 2

          II.        ABSENT RELIEF PLAINTIFFS WILL CONTINUE TO SUFFER
                     IRREPARABLE HARM ........................................................................... 6

          III.       PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
                     AND THE EQUITIES AND PUBLIC INTEREST WEIGH IN
                     THEIR FAVOR ......................................................................................... 8

          IV.        THE COURT SHOULD NOT REQUIRE A BOND .............................. 10

CONCLUSION ................................................................................................................ 11




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                                                TABLE OF AUTHORITIES


                                                                                                                                 Page(s)

Cases

Bennett v. Spear,
   520 U.S. 154 (1997) ............................................................................................................... 2-3

Corning Inc. v. PicVue Elecs., Ltd.,
   365 F.3d 156 (2d Cir. 2004).....................................................................................................10

Darby v. Cisneros,
   509 U.S. 137 (1993) ...................................................................................................................5

Deferio v. City of Syracuse,
   193 F. Supp. 3d 119 (N.D.N.Y. 2016) .....................................................................................10

Dep't of Homeland Sec. v. Regents of the Univ. of California,
   591 U.S. 1 (2020) .......................................................................................................................6

Doctor’s Assocs., Inc. v. Stuart,
   85 F.3d 975 (2d Cir. 1996)................................................................................................. 10-11

Encino Motorcars, LLC v. Navarro,
   579 U. S. 211 (2016) ..................................................................................................................9

Harrell v. Joshi,
   No. 14-cv-7246, 2015 WL 9275683 (S.D.N.Y. Dec. 18, 2015) ..............................................11

Lunney v. United States,
   319 F.3d 550 (2d Cir. 2003).......................................................................................................5

Maine v. United States Dep’t of Agriculture,
   No. 25-cv-00131, 2025 WL 1088946 (D. Me. Apr. 11, 2025) ................................................11

Mastrio v. Sebelius,
  768 F.3d 116 (2d Cir. 2014).......................................................................................................8

N. Am. Soccer League, LLC v. United States Soccer Fed'n, Inc.,
    883 F.3d 32 (2d Cir. 2018)..................................................................................................... 8-9

New York City Triathlon, LLC v. NYC Triathlon Club, Inc.,
   704 F. Supp. 2d 305 (S.D.N.Y. 2010)......................................................................................11

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New York v. Scalia,
   490 F. Supp. 3d 748 (S.D.N.Y. 2020)........................................................................................6

Nken v. Holder,
   556 U.S. 418 (2009) .................................................................................................................10

Pacito v. Trump,
   No. 25-cv-255, 2025 WL 893530 (W.D. Wash. Mar. 24, 2025) .............................................11

Pharm. Soc’y of State of New York, Inc. v. New York Dep’t of Soc. Servs.,
   50 F.3d 1168 (2d Cir. 1995).....................................................................................................10

Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Hum. Servs.,
   337 F. Supp. 3d 308 (S.D.N.Y. 2018)........................................................................................5

R.I.L-R v. Johnson,
    80 F. Supp. 3d 164 (D.D.C. 2015) .............................................................................................5

Sackett v. E.P.A.,
   566 U.S. 120 (2012) ...................................................................................................................5

Sharkey v. Quarantillo,
   541 F.3d 75 (2d Cir. 2008).........................................................................................................5

Texas v. Brooks-LaSure,
   No. 21-cv-00191, 2021 WL 5154219 (E.D. Tex. Aug. 20, 2021) .............................................8

Federal Statutes

5 U.S.C. § 704 ..................................................................................................................................2

Federal Regulations

2 C.F.R. § 200.344 .........................................................................................................................10

Rules

Fed. R. Civ. P. 65 ...........................................................................................................................10




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Miscellaneous Authorities

Unitd States Department of Education, Education Stabilization Fund Liquidation
   Extensions (last accessed Apr. 29, 2025), available at https://www.ed.gov/grants-and-
   programs/formula-grants/response-formula-grants/covid-19-emergency-relief-
   grants/education-stabilization-fund-liquidation-extensions ................................................... 3-4

Senate Report 118-84, Committee on Appropriations 253 (July 27, 2023) ..................................10




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                                        INTRODUCTION

        After previously extending Plaintiffs’ time to liquidate nearly a billion dollars in education

stabilization funds through March 2026, Defendants abruptly and without prior notice rescinded

the extensions and simultaneously declared Plaintiffs’ time for liquidating the funds to be expired,

causing widespread chaos among Plaintiffs’ state and local education agencies and non-public

schools.1

       In opposing Plaintiffs’ motion to preliminarily enjoin this drastic change in ED’s position,

Defendants argue “no harm, no foul” because they are offering states an alternative—a new

process requiring a six-step agency review to obtain project-specific extensions if they can

demonstrate to ED’s satisfaction how a particular project is necessary to mitigate the effects of the

pandemic and justify why ED should exercise its discretion to allow the extension. In other words,

instead of timely liquidating their ES funding through ministerial payment requests, Plaintiffs must

now follow a new process that gives Defendants a clean slate for a do-over on ES funding grants.

Defendants’ new project-specific application process—subject to ED’s unfettered discretion, with

an uncertain timeframe and outcome—does nothing to redress the irreparable harm that Plaintiffs

continue to suffer from the Rescission Letter.

       Nor does the availability of this wholly inadequate new process render Defendants’

rescission of the prior extension approvals not “final” for purposes of review under the APA. In

any event, an agency action is “final” even when subject to reconsideration unless the action is

inoperative pending the agency’s reconsideration. 5 U.S.C. § 704. Here, the Rescission Letter

became effective immediately.



1
 The defined terms used in this reply are the same as those used in Plaintiffs’ opening brief (ECF
No. 11) (“Opening Br.”).

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             On this record—consisting of the Rescission Letter as the sole basis for ED’s drastic

     change in position—the Court should preliminarily enjoin Defendants from rescinding ED’s prior

     extension approvals and declaring Plaintiffs’ time to liquidate their ES funding to have already

     expired.

                                                ARGUMENT

I.       THE RESCISSION LETTER IS FINAL AGENCY ACTION RIPE FOR
         JUDICIAL REVIEW

             Defendants maintain that the Rescission Letter is not final agency action for purposes of

     review under the APA because ED has invited states to request extensions on an individual project-

     specific basis. See Defendants’ Memorandum of Law in Opposition (ECF No. 63) (“Opp.”) at 9.

     Defendants’ argument misses the mark, and conflicts with express statutory language in the APA.

             Agency action is “final” for purposes of review under the APA if it: (i) “mark[s] the

     consummation of the agency’s decisionmaking process—[and is not] of a merely tentative or

     interlocutory nature,” and (ii) determines “rights or obligations ... from which legal consequences

     will flow.” Bennett v. Spear, 520 U.S. 154, 178 (1997) (cleaned up). The agency action Plaintiffs

     challenge here—the determinations in the Rescission Letter to rescind ED’s prior extension

     approvals and declare Plaintiffs’ liquidation periods to have already expired—are “final” under

     this test.

             First, there is nothing “tentative” or “interlocutory” about either determination; as stated in

     the Rescission Letter, ED “has concluded” that any extension “was not justified” and “is modifying

     the liquidation period to end on March 28, 2025.” Rescission Letter at 1. While the Rescission

     Letter states that ED “will consider an extension … on an individual project-specific basis,”

     nothing in the Rescission Letter suggests that Defendants’ determinations to rescind the prior

     extension approvals and terminate Plaintiffs’ liquidation periods remain under review or subject


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to further agency consideration. And the April 3, 2025 “Dear Colleagues” letter (“April 3 Letter”)

confirms these agency determinations are final: “all previously approved liquidation extensions

are no longer in effect.” April 3 Letter (emphasis added), available at https://www.ed.gov/

media/document/dear-colleague-letter-follow-esf-funding-april-3-2025-109779.pdf.

       Second, it is equally clear that the Rescission Letter determines Plaintiffs’ “rights or

obligations ... from which legal consequences will flow.” Bennett, 520 U.S. at 178 (cleaned up).

Prior to the Rescission Letter, Plaintiffs had the “right” to submit timely requests to liquidate their

ES funding awards until March 2026 through a ministerial process. Opening Br. at 8-9. The

Rescission Letter extinguished that right by rescinding the prior extension approvals and

modifying Plaintiffs’ liquidation periods “to end on March 28, 2025.” Rescission Letter at 1. The

legal consequences for Plaintiffs that flow from the Rescission Letter could not be more apparent;

instead of submitting a timely liquidation request without the need for further explanation or

justification, Plaintiffs are now relegated to an onerous and time-consuming procedure that

requires them to submit detailed information on a project-specific basis, including a “description

of how a particular project’s extension is necessary to mitigate the effects of COVID on American

students’ education” and a “justification of why the Department should exercise its discretion to

grant” an extension for each project. April 3 Letter. The new request is then subject to a six-step

agency review process involving a “Program Office Reviewer” and “Program Office Senior

Leadership” and an administrative appeal process. See U.S. Department of Education, Education

Stabilization Fund Liquidation Extensions (last accessed Apr. 29, 2025), available at https://

www.ed.gov/grants-and-programs/formula-grants/response-formula-grants/covid-19-emergency-

relief-grants/education-stabilization-fund-liquidation-extensions. ED provides no timeframe for

completing this six-step review process, nor do Defendants indicate whether any of the over 150



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project-specific extension requests received by ED as of April 23, 2025, have been decided. Id.

This stands in stark contrast to the ministerial process ED is still following for payment requests

“received prior to 5 pm Eastern Time on March 28, 2025.” April 3 Letter.

       Defendants attempt to obfuscate this straightforward analysis by suggesting that the legal

consequences of the Rescission Letter are “unclear” because ED has not made “final

determinations” on whether Plaintiffs may obtain project-specific extensions following the new,

onerous process. Opp. at 10. But the outcome of any project-specific request under Defendants’

new process is irrelevant; Plaintiffs are challenging the determinations in the Rescission Letter to

rescind the prior extension approvals and terminate Plaintiffs’ liquidation periods as of March 28,

2025, and those determinations are “final” regardless of whatever outcome may result from a

different process Defendants now insist Plaintiffs must follow to regain the “right” to timely

liquidate their ES funding awards that was stripped away by the Rescission Letter. And for this

same reason, whether a handful of Plaintiff States have submitted requests for project-specific

extensions under the new onerous process, Opp. at 6, 10, has no bearing on the Court’s analysis.2

       But even if the new process were relevant to assessing the finality of the determinations in

the Rescission Letter (which is not the case), the outcome would be the same. Under the APA,

agency action otherwise final is final for purposes of APA review “whether or not it may be subject

to appeal or reconsideration ‘unless the agency otherwise requires by rule and provides that the

action meanwhile is inoperative.’” Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003)

(quoting 5 U.S.C. § 704) (emphasis added); see also Darby v. Cisneros, 509 U.S. 137, 154 (1993)




2
 It also appears that ED’s website upon which Defendants rely is inaccurate. California is listed
as one of the states seeking project-specific extensions under the new process, but California has
not done so. See Declaration of Natasha Middleton, sworn to on April 29, 2025, at ¶¶3-4.

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(same); Sackett v. E.P.A., 566 U.S. 120, 127 (2012) (“The mere possibility that an agency might

reconsider … does not suffice to make an otherwise final agency action nonfinal.”).

        Here, Defendants expressly provided that the rescission of ED’s prior extension approvals

and modification of Plaintiffs’ liquidation periods to expire on March 28, 2025, were effective

immediately, rather than “inoperative” pending consideration of any project-specific extension

requests, and therefore the agency determinations in the Rescission Letter are “final.” Darby, 509

U.S. at 154; see also Planned Parenthood of New York City, Inc. v. U.S. Dep't of Health & Hum.

Servs., 337 F. Supp. 3d 308, 328-29 (S.D.N.Y. 2018) (“[C]ourts routinely hold that agency action

is final where it affects grant eligibility criteria.”).

        Finally, Defendants argue that Plaintiffs’ claims are not prudentially ripe because they are

not fit for judicial decision and will not cause Plaintiffs hardship absent judicial review for the

reason that Plaintiffs “can seek extensions on individual, project-specific grounds” under the new

process.3 Opp. at 11. Since fitness for judicial decision under the prudential ripeness standard and

the finality test under the APA are closely related, Defendants’ lack of fitness argument fails for

the same reason that their lack of finality argument fails. Sharkey v. Quarantillo, 541 F.3d 75, 89

(2d Cir. 2008). This suit involves a final agency action—the Rescission Letter—and raises the

purely legal question of whether Defendants, by issuing the Rescission Letter, violated the APA

through conduct that was arbitrary and capricious and contrary to law. See id. at 89-90. Moreover,

judicial review of the Rescission Letter “will not interfere with any ongoing administrative action”

concerning the determinations in the Rescission Letter, and “there can be no further factual

development because the Court must decide” whether Defendants’ conduct is arbitrary and



3
  Defendants assume (and thereby concede) that “Plaintiffs have standing, and thus satisfy the
constitutional element of the ripeness doctrine.” Opp. at 11.

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      capricious and contrary to law based on just the Rescission Letter itself, the only document

      comprising the administrative record in this case.4 New York v. Scalia, 490 F. Supp. 3d 748, 773

      (S.D.N.Y. 2020). Plaintiffs’ APA claims are clearly fit for judicial decision.

             Nor can there be any serious doubt that Plaintiffs will endure hardship absent the Court’s

      review of their APA claims. By Defendants’ own admission, Plaintiffs are precluded by the

      Rescission Letter from submitting timely ministerial payment requests to liquidate hundreds of

      millions of dollars in remaining ES funding and must instead pursue an arduous and time-

      consuming new process of requesting “extensions on individual, project specific grounds,” Opp.

      at 11, with no assurance as to when ED will act upon the requests or whether the requests will be

      granted, see April 3 Letter. For the reasons discussed in Plaintiffs’ opening brief and below,

      Plaintiffs will suffer irreparable harm absent this Court’s review of their APA claims—harm that

      will not be redressed by forcing them to pursue Defendants’ new onerous process for requesting

      extensions on a project-specific basis. Opening Br. at Point II.B.; infra, at Point II.

II.       ABSENT RELIEF PLAINTIFFS WILL CONTINUE TO SUFFER
          IRREPARABLE HARM

             In their opening brief, Plaintiffs demonstrated that the Rescission Letter has already caused

      them to suffer irreparable harm, with more harm visited upon them with every day that the chaos

      sown by Defendants’ actions is allowed to continue. Opening Br. at 25-27.



      4
        Defendants have not filed a certified administrative record and offer no documentation to expand
      on the reasoning behind, and justification for, their determinations beyond what is set forth in the
      Rescission Letter. Nor can Defendants rely on the April 3 Letter as it post-dates the agency’s final
      action. See Dep't of Homeland Sec. v. Regents of the Univ. of California, 591 U.S. 1, 21 (2020)
      (holding an agency’s rescission cannot be upheld on the basis of impermissible post hoc
      rationalization).




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       For example:

       •   New York’s and Illinois’ respective SEAs will imminently be forced to fire staff
           responsible for managing ES funding programs, with no guarantee that they will be
           able to rehire these experienced employees at the end of this case. Seaton-IL ¶¶25(c),
           25(f); Coughlin-NY ¶¶55-57. Training new hires will require states to expend
           resources. See Coughlin-NY ¶57.

       •   Many of Plaintiffs’ SEAs, LEAs, and non-public schools have been told by vendors
           that they cannot perform ES-funded programs intended to compensate for lost
           instruction time, while other Plaintiffs have had to, or expect imminently to, cancel
           contracts for such programs due to lack of funding. Slaga-AZ ¶¶26-27; Pierson-CA
           ¶¶14-15; Seaton-IL ¶25(a); Perkins-Cohen-MD ¶¶13-15; Wright-MD ¶9; Rice-MI
           ¶¶23-25; Coughlin-NY ¶¶50-54; Supplemental Declaration of Alison Perkins-Cohen,
           sworn to on April 29, 2025 (“Supp. Perkins-Cohen-MD”), at ¶¶4-8.

       •   Many of Plaintiffs’ SEAs, LEAs, and non-public schools have had to, or will soon have
           to, terminate contracts with vendors engaged in capital improvement projects—
           including critical HVAC projects—that are funded entirely by ES funds. Perkins-
           Cohen-MD ¶¶13-15; Rice-MI ¶22; Coughlin-NY ¶¶47-49; Rowe-PA ¶¶24-25, 28. The
           immediate cessation of work by contractors in the midst of upgrade projects has left
           schools with unfinished construction work that endangers the health and safety of
           students and teachers and renders areas within schools unusable. See, e.g., Coughlin-
           NY ¶48 (describing holes left in the walls of an unfinished HVAC project).

       •   Many vendors have already incurred expenses under their contracts that they can no
           longer recover through reimbursement requests to LEAs and SEAs as a result of the
           Rescission Letter, exposing Plaintiffs to potential collection actions. Opening Br. at 17;
           Pierson-CA ¶15; Coughlin-NY ¶¶58-61.

       •   Existing budgetary constraints do not permit Plaintiffs to make up for the substantial
           shortfall resulting from the Rescission Letter. See Coughlin-NY ¶¶46, 61; Slaga-AZ
           ¶25; Stewart-DC ¶11; Martin-DE ¶13; Seaton-IL ¶26; Chasse Johndro-ME ¶36;
           Ehling-NJ ¶20; Wetherell-OR ¶25; Rowe-PA ¶30; Supp. Perkins-Cohen-MD ¶8.

       In response to this strong showing of irreparable harm, Defendants rely primarily on their

new onerous process for seeking extensions on a project-specific basis. Opp. at 15-16. For all the

reasons provided in Point I above, Defendants cannot and do not redress Plaintiffs’ irreparable

harm by arbitrarily nullifying and replacing Plaintiffs’ right to liquidate funds through timely

ministerial payment requests with a new onerous process affording them the mere possibility that,

at some unknown time in the future, Defendants may or may not exercise their unfettered discretion


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       to restore the liquidation rights they have abruptly taken away. See Texas v. Brooks-LaSure, No.

       21-cv-00191, 2021 WL 5154219, at *13 (E.D. Tex. Aug. 20, 2021) (holding that “possibility of

       permanent … relief” as part of agency’s administrative appeal process did not “negate[ plaintiffs’]

       showing of irreparable harm” from agency’s sudden rescission of previously granted approval).

              Defendants also argue there is no irreparable harm because “it is unclear from the complaint

       and States’ brief whether they may be able to cover any short-term shortfall in funding.” Opp. at

       16. Defendants ignore the testimony Plaintiffs have submitted in support of this motion (ECF Nos.

       12-28), citing instead to two paragraphs in the Complaint. Id. The sworn testimony in the record

       establishes that existing budgetary constraints prevent Plaintiffs from covering the substantial

       shortfall caused by Defendants’ actions. See Coughlin-NY ¶¶46, 61; Slaga-AZ ¶25; Stewart-DC

       ¶11; Martin-DE ¶13; Seaton-IL ¶26; Chasse Johndro-ME ¶36; Ehling-NJ ¶20; Wetherell-OR ¶25;

       Rowe-PA ¶30.

III.      PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS AND THE
          EQUITIES AND PUBLIC INTEREST WEIGH IN THEIR FAVOR

              As a threshold matter, Defendants are wrong in contending that Plaintiffs seek a

       preliminary injunction that is mandatory (as opposed to prohibitory) and therefore must satisfy a

       higher standard. Opp. at 8. “Prohibitory injunctions maintain the status quo pending resolution of

       the case; mandatory injunctions alter it.” N. Am. Soccer League, LLC v. United States Soccer

       Fed'n, Inc., 883 F.3d 32, 36 (2d Cir. 2018). Here, the status quo is the status that existed just prior

       to 5:03pm ET on March 28, 2025, when Defendants sent the Rescission Letter. See Mastrio v.

       Sebelius, 768 F.3d 116, 120 (2d Cir. 2014) (per curiam) (holding the status quo is “the last actual,

       peaceable uncontested status which preceded the pending controversy”). At that moment, ED’s

       prior extension approvals were effective, including the extension of Plaintiffs’ liquidation periods

       for their ARP ES funding awards allowing them to submit timely ministerial payment requests to


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ED through March 2026 without having to meet the onerous conditions Defendants have specified

for the new process to seek project-specific extensions. Plaintiffs’ Proposed Preliminary Injunction

accomplishes nothing more than restoring the parties to the status quo as it existed just before the

Rescission Letter was sent, and is therefore prohibitory, not mandatory. N. Am. Soccer League,

LLC, 883 F.3d at 36-37.

       Defendants pay only lip service to the change-in-position doctrine, contending that they

satisfy the standard because they “explained” their actions in the Rescission Letter. Opp. at 13.

But the standard requires Defendants to provide not just any explanation, but a “reasoned” one.

Encino Motorcars, LLC v. Navarro, 579 U. S. 211, 221-22 (2016). Defendants’ explanation is not

“reasoned.” See Opening Br. at 22-23. Nor does Defendants’ conclusory pronouncement that any

reliance was “‘minimal’ owing to the recency of the extension approval and [ED’s] authority to

reconsider its position,” Opp. at 13 (cleaned up), constitute the requisite consideration of Plaintiffs’

“serious reliance interests,” Encino Motorcars, 579 U. S. at 222 (cleaned up), for the reasons

previously stated, see Opening Br. at 23-24.

       Defendants’ response to Plaintiffs’ contrary-to-law APA claim is equally unavailing. As

Plaintiffs established in their opening brief, Congress intended to retain the ES funding in place

for use by SEAs and LEAs in ameliorating the long-term effects of COVID-19 despite the end of

the pandemic, see id. at 24-25, so Defendants’ decision to rescind ED’s prior extension approvals

because “the COVID pandemic ended,” Rescission Letter at 1, contravenes Congress’ intent.

Defendants also misleadingly suggest that Congress intended Plaintiffs to liquidate their ES

funding within 120 days of September 30, 2024 (i.e., by January 28, 2025), but that ignores

applicable regulations providing that ED “may approve extensions,” 2 C.F.R. § 200.344(c), and a




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      Senate report encouraging ED to do so liberally with minimal burden on states, Senate Report 118-

      84, Committee on Appropriations 253 (July 27, 2023), available at https://perma.cc/BGA9-XFBP.

             Moreover, Defendants seek to obscure the obvious conflict between their actions and

      Congress’ intent by contending they are merely “changing the process by which states may

      liquidate remaining funds.” Opp. at 14. That characterization belies reality. The Rescission Letter

      does not merely “chang[e] the process.” Rather, it eviscerates Plaintiffs’ right to timely liquidate

      awarded ES funding through a ministerial process and imposes on them a new onerous application

      procedure that gives ED a do-over on awarding appropriated ES funds in a manner that conflicts

      with Congress’ intent. The APA precludes Defendants from doing so on a whim, without any

      reasoned explanation or consideration of Plaintiffs’ serious reliance interests.

             Defendants’ argument on the balance of equities and public interest factors—which merge

      here because the federal government is a party, Nken v. Holder, 556 U.S. 418, 435 (2009)—is

      equally without merit. Because Defendants’ conduct violates the APA, there is a strong public

      interest in preliminarily enjoining Defendants from enforcing the Rescission Letter, Deferio v. City

      of Syracuse, 193 F. Supp. 3d 119, 131 (N.D.N.Y. 2016), and Defendants suffer no harm from an

      injunction that preserves the status quo, R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015).

IV.      THE COURT SHOULD NOT REQUIRE A BOND

             The Court is “‘vested with wide discretion’” in determining what amount of security, if

      any, is appropriate under Federal Rule of Civil Procedure 65(c). Doctor’s Assocs., Inc. v. Stuart,

      85 F.3d 975, 985 (2d Cir. 1996) (quoting Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir. 1961)).

      The Court is required to make this determination before granting a preliminary injunction. Corning

      Inc. v. PicVue Elecs., Ltd., 365 F.3d 156, 158 (2d Cir. 2004).

             The Court should exercise its discretion to dispense with requiring Plaintiffs to post a bond

      because this is a case “involving the enforcement of public interests arising out of comprehensive
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federal health and welfare statutes,” here COVID-19 appropriation laws. Pharm. Soc’y of State of

New York, Inc. v. New York Dep’t of Soc. Servs., 50 F.3d 1168, 1174 (2d Cir. 1995) (cleaned up).

       Additionally, it is appropriate for the Court to “‘require no bond [because here] there has

been no proof of likelihood of harm” to the Defendants if Plaintiffs are permitted to submit timely

payment requests to liquidate the appropriated ES funding that ED has already awarded. Doctor’s

Assoc. 85 F.3d at 985 (quoting Ferguson, 299 F.2d at 675); see also Pacito v. Trump, No. 25-cv-

255, 2025 WL 893530, at *15 (W.D. Wash. Mar. 24, 2025) (waiving the bond requirement based

on finding cost to the government to be “minimal” where funds at issue “have already been

appropriated by Congress, and whose expenditure is mandatory”).

       Finally, the Court should not require Plaintiffs to post any bond because “the likelihood of

[Plaintiffs’] success on the merits is overwhelming.” New York City Triathlon, LLC v. NYC

Triathlon Club, Inc., 704 F. Supp. 2d 305, 345 (S.D.N.Y. 2010); Maine v. United States Dep’t of

Agriculture, No. 25-cv-00131, 2025 WL 1088946, at *30 (D. Me. Apr. 11, 2025) (finding the need

for a “substantial bond” is minimized where a plaintiff’s “likelihood of success on the merits of

the claims at issue is extraordinarily high”) (cleaned up).

       Accordingly, the Court should reject Defendants’ argument that Plaintiffs should post a

bond in the nominal sum of $10,000, Opp. at n.3—even if deemed adequately raised despite being

“made only in a footnote,” Harrell v. Joshi, No. 14-cv-7246, 2015 WL 9275683, at *2 n.5

(S.D.N.Y. Dec. 18, 2015) (cleaned up).

                                         CONCLUSION

       For these reasons, Plaintiffs respectfully request that the Court enter their Proposed

Preliminary Injunction Order (ECF No. 11-2), along with granting such other relief as the Court

deems necessary and appropriate to maintain the status quo pending resolution of this action.



                                                 11
      Case 1:25-cv-02990-ER          Document 67      Filed 04/29/25    Page 17 of 21




Dated: New York, New York
       April 29, 2025
                                                   Respectfully submitted,


LETITIA JAMES                               KRISTIN K. MAYES
ATTORNEY GENERAL OF NEW YORK                ATTORNEY GENERAL OF ARIZONA

By: /s Andrew Amer                          By: /s/ Alexa Salas
Andrew Amer                                 Alexa Salas**
  Special Counsel                             Assistant Attorney General
Molly Thomas-Jensen                         Lauren Watford*
  Special Counsel                             Assistant Attorney General
Rabia Muqaddam                              2005 North Central Avenue
  Special Counsel for Federal Initiatives   Phoenix, Arizona 85004
Stephen C. Thompson                         (602) 542-3333
  Special Counsel                           Alexa.Salas@azag.gov
28 Liberty Street                           Lauren.Watford@azag.gov
New York, NY 10005                          ACL@azag.gov
(212) 416-6127
andrew.amer@ag.ny.gov                       Counsel for the State of Arizona

Counsel for the State of New York
                                            KATHLEEN JENNINGS
                                            ATTORNEY GENERAL OF THE STATE OF
ROB BONTA                                   DELAWARE
ATTORNEY GENERAL OF CALIFORNIA
                                            By: /s/ Vanessa L. Kassab
By: /s/ Maureen C. Onyeagbako               Ian Liston
Maureen C. Onyeagbako**                       Director of Impact Litigation
  Supervising Deputy Attorney General       Vanessa L. Kassab
José Pablo Galán de la Cruz**                 Deputy Attorney General
  Deputy Attorney General                   Delaware Department of Justice
Cheryl L. Feiner**                          820 N. French Street
  Senior Assistant Attorney General         Wilmington, DE 19801
California Attorney General’s Office        (302) 683-8899
1300 I Street, Ste. 125                     vanessa.kassab@delaware.gov
P.O. Box 944255
Sacramento, CA 94244-2550                   Counsel for the State of Delaware
Telephone: (916) 210-7324
Email: Maureen.Onyeagbako@doj.ca.gov
        Pablo.Galan@doj.ca.gov
        Cheryl.Feiner@doj.ca.gov

Counsel for Plaintiff State of California



                                            12
     Case 1:25-cv-02990-ER         Document 67   Filed 04/29/25       Page 18 of 21




BRIAN L. SCHWALB                          ANNE E. LOPEZ
ATTORNEY GENERAL FOR THE DISTRICT OF      ATTORNEY GENERAL FOR THE STATE OF
COLUMBIA                                  HAWAIʻI

By: /s/ Andrew Mendrala                   By: /s/ Kalikoʻonālani D. Fernandes
Andrew Mendrala**                         David D. Day*
  Assistant Attorney General                Special Assistant to the Attorney General
Public Advocacy Division                  Kalikoʻonālani D. Fernandes*
Office of the Attorney General for the      Solicitor General
District of Columbia                      425 Queen Street
400 Sixth Street, NW Washington, DC       Honolulu, HI 96813
20001                                     (808) 586-1360
(202) 724-9726                            kaliko.d.fernandes@hawaii.gov
Andrew.Mendrala@dc.gov
                                          Counsel for the State of Hawaiʻi
Counsel for the District of Columbia

                                          KWAME RAOUL
AARON M. FREY                             ATTORNEY GENERAL FOR THE STATE OF
ATTORNEY GENERAL FOR THE STATE OF         ILLINOIS
MAINE
                                          By: /s/ Elena S. Meth
By:/s/ Sarah A. Forster                   Cara Hendrickson**
Sarah A. Forster*                           Assistant Chief Deputy Attorney General
  Assistant Attorney General              Elena S. Meth**
Office of the Attorney General              Assistant Attorney General
6 State House Station                     Office of the Illinois Attorney General
Augusta, ME 04333-0006                    115 S. LaSalle St.
Tel.: 207-626-8800                        Chicago, IL 60603
Fax: 207-287-3145                         (773) 835-0182
Sarah.Forster@maine.gov                   Cara.Hendrickson@ilag.gov
                                          Elena.Meth@ilag.gov
Counsel for the State of Maine
                                          Counsel for the State of Illinois




                                          13
     Case 1:25-cv-02990-ER          Document 67    Filed 04/29/25     Page 19 of 21




ANTHONY G. BROWN                            ANDREA JOY CAMPBELL
ATTORNEY GENERAL FOR THE STATE OF           ATTORNEY GENERAL OF MASSACHUSETTS
MARYLAND
                                            By: /s/ David C. Kravitz
By: /s/ Keith M. Jamieson                   David C. Kravitz**
Elliott Schoen*                               State Solicitor
  Principal Counsel                         Katherine Dirks
  Assistant Attorney General                  Chief State Trial Counsel
Alan J. Dunklow*                            Office of the Attorney General
  Deputy Principal Counsel                  One Ashburton Place, 20th Floor
  Assistant Attorney General                Boston, MA 02108
Maryland State Department of Education      (617) 963-2427
Keith M. Jamieson*                          david.kravitz@mass.gov
  Assistant Attorney General
Federal Accountability Unit                 Counsel for the
Office of the Attorney General               Commonwealth of Massachusetts
200 Saint Paul Place
Baltimore, Maryland 21202
(410) 576-6960                              KEITH ELLISON
kjamieson@oag.state.md.us                   ATTORNEY GENERAL FOR THE STATE OF
                                            MINNESOTA
Counsel for the State of Maryland           By: /s/ Liz Kramer
                                            Liz Kramer**
                                              Solicitor General
DANA NESSEL                                 445 Minnesota Street, Suite 1400
ATTORNEY GENERAL OF MICHIGAN                St. Paul, Minnesota, 55101
                                            (651) 757-1010
By: /s/ Neil Giovanatti                     Liz.Kramer@ag.state.mn.us
Neil Giovanatti
BreAnna Listermann*                        Counsel for the State of Minnesota
  Assistant Attorneys General
Michigan Department of Attorney General
525 W. Ottawa                               AARON D. FORD
Lansing, MI 48909                           ATTORNEY GENERAL OF NEVADA
(517) 335-7603
GiovanattiN@michigan.gov                   By: /s/ Heidi Parry Stern
ListermannB@michigan.gov                   Heidi Parry Stern (Bar. No. 8873)
                                             Solicitor General
Counsel for the People of the State of     Office of the Nevada Attorney General
Michigan                                   1 State of Nevada Way, Ste. 100
                                           Las Vegas, NV 89119
                                           HStern@ag.nv.gov

                                            Counsel for the State of Nevada




                                           14
      Case 1:25-cv-02990-ER            Document 67   Filed 04/29/25     Page 20 of 21



MATTHEW J. PLATKIN                            RAÚL TORREZ
 ATTORNEY GENERAL OF NEW JERSEY               ATTORNEY GENERAL OF THE STATE OF NEW
                                              MEXICO
/s/ Lauren E. Van Driesen
Lauren E. Van Driesen
Jessica L. Palmer                             /s/ Anjana Samant
Justine Longa**                               Anjana Samant**
  Deputy Attorneys General                      Deputy Counsel
Office of the Attorney General                New Mexico Department of Justice
124 Halsey Street, 5th Floor                  408 Galisteo Street
Newark, NJ 07101                              Santa Fe, NM 87501
(609) 696-5279
Lauren.VanDriesen@law.njoag.gov               asamant@nmdoj.gov
Jessica.Palmer@law.njoag.gov                  (505) 270-4332
Justine.Longa@law.njoag.gov
                                              Counsel for the State of New Mexico
Counsel for the State of New Jersey

                                              JENNIFER C. SELBER
 DAN RAYFIELD                                   General Counsel
 ATTORNEY GENERAL FOR THE STATE OF            Michael J. Fischer
 OREGON                                         Executive Deputy General Counsel
 By: /s/ Sara Van Loh
 Sara Van Loh OSB #044398*                    By:/s/ Thomas P. Howell
   Senior Assistant Attorney General          Thomas P. Howell*
 100 SW Market Street                           Deputy General Counsel
 Portland, Oregon 97201                       Governor’s Office of General Counsel
 Tel (971) 673-1880                           30 N. 3rd Street, Suite 200
 Fax (971) 673-5000                           Harrisburg, PA 17101
 Sara.VanLoh@doj.oregon.gov                   (717) 460-6786
                                              thowell@pa.gov
 Attorneys for the State of Oregon
                                              Counsel for Governor Josh Shapiro,
                                              Commonwealth of Pennsylvania




                                              * Admitted Pro Hac Vice
                                              ** Pending Pro Hac Vice applications filed/to
                                              be filed




                                              15
       Case 1:25-cv-02990-ER          Document 67         Filed 04/29/25       Page 21 of 21




                                  RULE 7.1 CERTIFICATION

       I certify that, excluding the caption, table of contents, table of authorities, signature

block, and this certification, the foregoing Reply Memorandum of Law contains 3,493 words,

calculated using Microsoft Word, which complies with Rule 7.1(c) of the Local Rules of the

United States District Courts for the Southern and Eastern Districts of New York.

Dated: New York, New York
       April 29, 2025

                                               LETITIA JAMES
                                               Attorney General of the State of New York

                                               By: /s Andrew Amer
                                               Andrew Amer
                                                 Special Counsel
                                               28 Liberty Street
                                               New York, NY 10005
                                               (212) 416-6127
                                               andrew.amer@ag.ny.gov


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