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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
i
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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
ii
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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
iii
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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
iv
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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.”).
1
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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
2
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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
3
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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.
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).
6
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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
8
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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
10
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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
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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