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Home Source documents Reply Memorandum, State of Washington v. DeVos (later v. Cardona), No. 2:20-cv-00182 (E.D. Wash.), Doc. 61 (July 21, 2020)

Reply Memorandum, State of Washington v. DeVos (later v. Cardona), No. 2:20-cv-00182 (E.D. Wash.), Doc. 61 (July 21, 2020)

Summary

In State of Washington v. Betsy DeVos and the U.S. Department of Education (No. 2:20-cv-00182-TOR), the plaintiff filed this reply in support of its motion for partial summary judgment. The reply argues that statutory indicators in the CARES Act overcome the "notwithstanding" clause in PRWORA, and that PRWORA does not bar distributing HEERF funds to noncitizens because HEERF funds are not federal public benefits. It states that the CARES Act is a subsequently enacted, more specific statute and that many of the students the Department aims to disqualify are DREAMers. The reply concludes that the Court should grant the State's motion. Spencer W. Coates signed it, with the date July 21, 2020.

Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used

Cite this document

“Reply Memorandum, State of Washington v. DeVos (later v. Cardona), No. 2:20-cv-00182 (E.D. Wash.), Doc. 61 (July 21, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/reply-memorandum-state-of-washington-v-devos-later-v-cardona-no-2-20-c-c004c6ffa4/, SHA-256 af8e17d9554ad1e6e39bd45f46f8ccd823d94be970bb072db8d6d1bc5c70e5c2.

Full text

     Case 2:20-cv-00182-TOR   ECF No. 61   filed 07/21/20   PageID.940 Page 1 of 17




 1       ROBERT W. FERGUSON
         Attorney General
 2
         SPENCER W. COATES, WSBA #49683
 3       R. JULY SIMPSON, WSBA #45869
         JEFFREY T. SPRUNG, WSBA #23607
 4       PAUL M. CRISALLI, WSBA #40681
         Assistant Attorneys General
 5       800 Fifth Avenue, Suite 2000
         Seattle, WA 98104-3188
 6       (206) 464-7744

 7                       UNITED STATES DISTRICT COURT
                        EASTERN DISTRICT OF WASHINGTON
 8                                AT SPOKANE

 9       STATE OF WASHINGTON,                       NO. 2:20-cv-00182-TOR
10                     Plaintiff,                   PLAINTIFF STATE OF
                                                    WASHINGTON’S REPLY IN
11          v.                                      SUPPORT OF ITS MOTION
                                                    FOR PARTIAL SUMMARY
12       BETSY DeVOS, in her official               JUDGMENT
         capacity as Secretary of the United
13       States Department of Education, and        NOTED FOR: JULY 21, 2020
         the UNITED STATES                          Without Oral Argument
14       DEPARTMENT OF EDUCATION, a
         federal agency,
15
                       Defendants.
16

17
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19

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         PLAINTIFF’S REPLY IN SUPPORT                          ATTORNEY GENERAL OF WASHINGTON
                                                                        Complex Litigation
         OF ITS MOTION FOR PARTIAL                                  800 Fifth Avenue, Suite 2000
                                                                      Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                  (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR            ECF No. 61          filed 07/21/20         PageID.941 Page 2 of 17




 1                                             TABLE OF CONTENTS

 2       I.     INTRODUCTION ............................................................................... 1

 3       II.    ARGUMENT....................................................................................... 1

 4              A. The CARES Act’s Statutory Indicators Overcome PRWORA’s
                   “Notwithstanding” Clause............................................................. 1
 5
                B. PRWORA Does Not Bar Distributing HEERF Funds to
 6                 Noncitizens Because HEERF Funds Are Not Federal Public
                   Benefits.......................................................................................... 5
 7
         III.   CONCLUSION ................................................................................. 10
 8
 9
10

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         PLAINTIFF’S REPLY IN SUPPORT                                   i               ATTORNEY GENERAL OF WASHINGTON
                                                                                                 Complex Litigation
         OF ITS MOTION FOR PARTIAL                                                           800 Fifth Avenue, Suite 2000
                                                                                               Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                                           (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR              ECF No. 61          filed 07/21/20        PageID.942 Page 3 of 17




 1                                           TABLE OF AUTHORITIES

 2                                                             Cases

 3       Bruesewitz v. Wyeth LLC,
           562 U.S. 223 (2011) .......................................................................................... 5
 4
         Dep’t of Homeland Sec. v. Regents of the Univ. of California,
 5        140 S. Ct. 1891 (2020) .................................................................................. 2, 3

 6       Illinois Nat’l Guard v. Fed. Labor Relations Auth.,
            854 F.2d 1396 (D.C. Cir. 1988) .................................................................... 3, 4
 7
         Ledezma-Galicia v. Holder,
 8         636 F.3d 1059 (9th Cir. 2010)........................................................................... 2

 9       Mashiri v. Dep’t of Educ.,
          724 F.3d 1028 (9th Cir. 2013)........................................................................... 9
10
         New Jersey Air Nat’l Guard v. Fed. Labor Relations Auth.,
11        677 F.2d 276 (3d Cir. 1982) ............................................................................. 4

12       Oakley v. Devos,
          No. 20-cv-03215-YGR, 2020 WL 3268661 (N.D. Cal.
13        June 17, 2020) ...........................................................................................1, 6, 8

14       Oregon Nat. Res. Council v. Thomas,
          92 F.3d 792 (9th Cir. 1996)............................................................................... 2
15
         Pimentel v. Dreyfus,
16         670 F.3d 1096 (9th Cir. 2012)........................................................................... 8

17       RadLAX Gateway Hotel, LLC v. Amalgamated Bank,
           566 U.S. 639 (2012) .......................................................................................... 4
18
         Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ.,
19         272 F.3d 1155 (9th Cir. 2001), opinion amended on denial of reh’g sub nom.
           Student Loan Fund of Idaho, Inc. v. U.S. Dep’t of Educ., 289 F.3d 599
20         (9th Cir. 2002) ................................................................................................... 3

21       United States v. Novak,
          476 F.3d 1041 (9th Cir. 2007)........................................................................... 2
22

         PLAINTIFF’S REPLY IN SUPPORT                                    ii               ATTORNEY GENERAL OF WASHINGTON
                                                                                                   Complex Litigation
         OF ITS MOTION FOR PARTIAL                                                             800 Fifth Avenue, Suite 2000
                                                                                                 Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                                             (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR              ECF No. 61         filed 07/21/20         PageID.943 Page 4 of 17




 1                                                           Statutes

 2       7 C.F.R. § 272.11 (2020) ...................................................................................... 9

 3       8 U.S.C. § 1601 (2020) ......................................................................................... 1

 4       8 U.S.C. § 1601(2)(B) .......................................................................................... 2

 5       8 U.S.C. § 1611..................................................................................................... 5

 6       8 U.S.C. § 1611(c) ................................................................................................ 5

 7       8 U.S.C. § 1612(a)(2)(D)(ii) ................................................................................. 8

 8       8 U.S.C. § 1642(d) (2020) .................................................................................. 10

 9       20 U.S.C. § 1091(g) (2020) .................................................................................. 9

10       H.R. Rep. No. 104-651 (1996) ............................................................................. 2

11       Pub. L. No. 116-136, 134 Stat. 281 § 18004 (Mar. 27, 2020) ......................... 6, 8

12       Pub. L. No. 116-136, 134 Stat. 281 § 18004(a)(1) (Mar. 27, 2020) .................... 4

13       Pub. L. No. 116-136, 134 Stat. 281 § 18004(c) (Mar. 27, 2020) ......................... 4

14                                                    Other Authorities

15       3 Shambie Singer, Sutherland Statutes and Statutory Construction § 63:10
           (Interpretation of public grants) (8th ed. 2020) ................................................ 4
16
         Ellis G. Goldman, Personal Responsibility and Work Opportunity
17         Reconciliation Act of 1996, U.S. Dep’t of Housing and Urban Development
           (Jan. 16, 2001), https://www.hud.gov/sites/documents/DOC_38164.PDF (last
18         visited July 21, 2020) ........................................................................................ 7

19       HHS Notice, PRWORA; Interpretation of ‘Federal Public Benefit,’ 63 FR
          41658, 1998 WL 435846 (Aug. 4, 1998) ............................................6, 7, 8, 10
20
         U.S. Dep’t of Justice, “Interim Guidance on Verification of Citizenship,
21         Qualified Alien Status and Eligibility Under Title IV of the Personal
           Responsibility and Work Opportunity Reconciliation Act of 1996,” 62 FR
22         61344-02 (Nov. 17, 1997) ............................................................................... 10

         PLAINTIFF’S REPLY IN SUPPORT                                   iii              ATTORNEY GENERAL OF WASHINGTON
                                                                                                  Complex Litigation
         OF ITS MOTION FOR PARTIAL                                                            800 Fifth Avenue, Suite 2000
                                                                                                Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                                            (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR         ECF No. 61       filed 07/21/20     PageID.944 Page 5 of 17




 1       U.S. Dep’t of Justice, et al., Joint Letter on Immigrant Access to Housing and
           Services (Aug. 5, 2016), https://www.hhs.gov/sites/default/files/Joint-Letter-
 2         August-2016.pdf (last visited July 21, 2020) .................................................... 7

 3
 4
 5
 6
 7
 8
 9
10

11
12
13

14
15
16

17
18
19

20
21
22

         PLAINTIFF’S REPLY IN SUPPORT                          iv             ATTORNEY GENERAL OF WASHINGTON
                                                                                       Complex Litigation
         OF ITS MOTION FOR PARTIAL                                                 800 Fifth Avenue, Suite 2000
                                                                                     Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                                 (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR    ECF No. 61       filed 07/21/20   PageID.945 Page 6 of 17




 1                                  I.         INTRODUCTION
 2             In passing PRWORA, Congress aimed to disincentivize illegal

 3       immigration and reduce dependence on systems of long-term welfare. See

 4       8 U.S.C. § 1601 (2020). That objective “does not apply” to HEERF, a “one-time

 5       federal funding allocation to address emergency needs during a national public

 6       health crisis.” Oakley v. Devos, No. 20-cv-03215-YGR, 2020 WL 3268661, at

 7       *24 n.30 (N.D. Cal. June 17, 2020).

 8             The Department’s Opposition frequently misstates and misapplies both

 9       PRWORA and the CARES Act. Congress did not intend, in passing either statute,

10       to prevent institutions of higher education that receive formula block grants from

11       distributing funds in a way that best prevents disenrollment during an emergency.

12       The CARES Act grants Washington’s institutions discretion to disburse HEERF

13       funds to the students they determine are most in need, and does not burden them

14       with any immigration-related or verification requirements. Additionally, the

15       CARES Act’s specific provisions overcome any claim of PRWORA’s general

16       applicability. As a matter of law, the State’s Motion should be granted.

17                                       II.    ARGUMENT
18       A.    The CARES Act’s Statutory Indicators Overcome PRWORA’s
               “Notwithstanding” Clause
19
               PRWORA’s use of a “notwithstanding clause” does not apply to HEERF
20
         funds because there are statutory indicators in both PRWORA and the CARES
21
         Act that overcome the use of that clause. Contrary to the Department’s
22

         PLAINTIFF’S REPLY IN SUPPORT                   1           ATTORNEY GENERAL OF WASHINGTON
                                                                             Complex Litigation
         OF ITS MOTION FOR PARTIAL                                       800 Fifth Avenue, Suite 2000
                                                                           Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                       (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR     ECF No. 61    filed 07/21/20   PageID.946 Page 7 of 17




 1       arguments, ECF No. 52 at 13-17, this is not an argument that the CARES Act
 2       abrogates PRWORA; rather, it is about the breadth of a “notwithstanding”

 3       provision, which “can be overridden by other statutory indicators.”

 4       Ledezma-Galicia v. Holder, 636 F.3d 1059, 1071 n.12 (9th Cir. 2010).

 5             The “[Ninth Circuit] ha[s] repeatedly held that the phrase ‘notwithstanding

 6       any other law’ is not always construed literally.” Oregon Nat. Res. Council v.

 7       Thomas, 92 F.3d 792, 796 (9th Cir. 1996). The “reach” of a “notwithstanding”

 8       clause is determined “by taking into account the whole of the statutory context in

 9       which it appears.” United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007).

10       Here, PRWORA was enacted to “limit[] lifetime welfare benefits,” H.R. Rep.

11       No. 104-651, at 3 (1996), to ensure the self-sufficiency of aliens, and to ensure

12       that “the availability of public benefits not constitute an incentive for immigration

13       to the United States,” 8 U.S.C. § 1601(2)(B). By contrast, HEERF funds are one-

14       time dispersals only available to students already enrolled in school and are not

15       the type of public benefits that would incentivize illegal immigration. For

16       example, many of the students the Department aims to disqualify are DREAMers.

17       ECF No. 13, Yoshiwara Decl., at 7-8 ¶ 17. DREAMers were brought to the

18       country illegally as children, “are ‘productive’ contributors to our society, and

19       ‘know only this country as home.’ ” Dep’t of Homeland Sec. v. Regents of the

20       Univ. of California, 140 S. Ct. 1891, 1901 (2020). DREAMers enroll in college

21       to better their lives. DREAMers also contribute towards the money available for

22

         PLAINTIFF’S REPLY IN SUPPORT                  2           ATTORNEY GENERAL OF WASHINGTON
                                                                            Complex Litigation
         OF ITS MOTION FOR PARTIAL                                      800 Fifth Avenue, Suite 2000
                                                                          Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                      (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR     ECF No. 61     filed 07/21/20   PageID.947 Page 8 of 17




 1       HEERF because they pay federal taxes. Id. at 1914 (“excluding DACA recipients
 2       from the lawful labor force may . . . result in the loss of . . . $60 billion in federal

 3       tax revenue over the next ten years.”). Providing DREAMers with HEERF

 4       funding is consistent with both PRWORA and the CARES Act because enabling

 5       DREAMers to stay in school will result in those individuals ending the cycle of

 6       poverty and becoming self-sufficient. Id.

 7              Moreover, the CARES Act is a subsequently enacted, more specific

 8       statute. “Notwithstanding” provisions “demonstrate[] that Congress intended to

 9       supersede any previously enacted conflicting provisions.” Student Loan Fund of

10       Idaho, Inc. v. U.S. Dep’t of Educ., 272 F.3d 1155, 1166 (9th Cir. 2001), opinion

11       amended on denial of reh’g sub nom. Student Loan Fund of Idaho, Inc. v. U.S.

12       Dep’t of Educ., 289 F.3d 599 (9th Cir. 2002) (emphasis added). The cases the

13       Department relies on to the contrary acknowledge that “notwithstanding” clauses

14       do not automatically apply to subsequently enacted laws. Illinois Nat’l Guard v.

15       Fed. Labor Relations Auth., 854 F.2d 1396, 1403 (D.C. Cir. 1988) (quoting New

16       Jersey Air Nat’l Guard v. Fed. Labor Relations Auth., 677 F.2d 276, 283 (3d Cir.

17       1982)) (stating that “[a]pplication of this [notwithstanding] statement is less

18       certain . . . with respect to [a later enacted statute]” and “drafters of [the earlier

19       statute] can hardly be said to have had the [later enacted statute] specifically

20       within their contemplation.”). Here, the CARES Act was enacted decades after

21       PRWORA and in response to a once in a lifetime, economy-crushing pandemic.

22

         PLAINTIFF’S REPLY IN SUPPORT                   3            ATTORNEY GENERAL OF WASHINGTON
                                                                              Complex Litigation
         OF ITS MOTION FOR PARTIAL                                        800 Fifth Avenue, Suite 2000
                                                                            Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                        (206) 464-7744
         NO. 2:20-cv-00182-TOR
     Case 2:20-cv-00182-TOR    ECF No. 61    filed 07/21/20   PageID.948 Page 9 of 17




 1             Further, the two cases relied on by the Department involved subsequently
 2       enacted more general statutes and gave preference to the more specific statute,

 3       New Jersey Air Nat’l Guard, 677 F.2d at 285-86; Illinois Nat’l Guard, 854 F.2d

 4       at 1405, rather than the subsequently enacted more specific statute here. “It is a

 5       commonplace of statutory construction that the specific governs the general.”

 6       RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012).

 7       Thus, the general rule of ensuring self-sufficiency of aliens is overridden by the

 8       specific instructions given by Congress in the CARES Act.

 9             Those specific instructions include the requirement that the Secretary

10       “shall allocate” HEERF funds to institutions according to a precise formula that

11       includes the total number of “students” who are not exclusively distance learners.

12       Pub. L. No. 116-136, 134 Stat. 281 § 18004(a)(1) (Mar. 27, 2020). Thereafter,

13       institutions disburse a certain percentage of that money as grants to “students.”

14       Id. at § 18004(c). This formula specifically excludes distance learners, but not

15       students ineligible under PRWORA. Id. at § 18004(a)(1). And yet, under the

16       Department’s analysis, those “students” included for the allocation are “students”

17       excluded from receiving funds, a result antithetical to the canon of statutory

18       construction that “[i]dentical words used in different parts of the same, or a

19       similar, statute usually have the same meaning.” 3 Shambie Singer, Sutherland

20       Statutes and Statutory Construction § 63:10 (Interpretation of public grants)

21       (8th ed. 2020).

22

         PLAINTIFF’S REPLY IN SUPPORT                4           ATTORNEY GENERAL OF WASHINGTON
                                                                          Complex Litigation
         OF ITS MOTION FOR PARTIAL                                    800 Fifth Avenue, Suite 2000
                                                                        Seattle, WA 98104-3188
         SUMMARY JUDGMENT                                                    (206) 464-7744
         NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR    ECF No. 61    filed 07/21/20     PageID.949 Page 10 of 17




 1          The Department argues it is a “leap of logic” to say that a student counted
 2    for the purpose of allocating the funding should also be counted towards a student

 3    who is eligible for a portion of that funding. ECF No. 52 at 16. But the

 4    Department cites no basis for its contention that Congress’s use of the term “full

 5    time equivalent” means those “students” are part of a “broader statistic.” Id. In

 6    fact, Congress was precise in its language. Under (1)(A), the Secretary counts the

 7    “fulltime equivalent enrollment of Federal Pell Grant recipients”—which would

 8    exclude individuals ineligible under PRWORA—but under (1)(B) counts

 9    “fulltime   equivalent    enrollment     of       students”—which       contains        no

10    immigration-related restrictions, they are simply counted towards the allocation.

11          Finally, the fact that the HEROES Act contains an explicit provision lifting

12    § 1611’s requirements for HEERF money does not show an intention that

13    Congress intended PRWORA to apply here. First, “[p]ost-enactment legislative

14    history (a contradiction in terms) is not a legitimate tool of statutory

15    interpretation.” Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011). Second, this

16    cuts against the Department because it shows that Congress did not intend § 1611

17    to apply to HEERF money and acted quickly to correct the Secretary’s conduct.

18    B.    PRWORA Does Not Bar Distributing HEERF Funds to Noncitizens
            Because HEERF Funds Are Not Federal Public Benefits
19
            The Department’s Opposition frequently misconstrues PRWORA’s
20
      structure and reach, and fails to show that either subsection of 8 U.S.C. § 1611(c)
21
      applies to HEERF. The Northern District of California correctly concluded that
22

      PLAINTIFF’S REPLY IN SUPPORT                  5           ATTORNEY GENERAL OF WASHINGTON
                                                                         Complex Litigation
      OF ITS MOTION FOR PARTIAL                                      800 Fifth Avenue, Suite 2000
                                                                       Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                      (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR     ECF No. 61    filed 07/21/20   PageID.950 Page 11 of 17




 1    HEERF did not meet this statutory definition, and this Court should hold the
 2    same. Oakley, 2020 WL 3268661, at *16.

 3          First, HEERF funds are not a “grant” within PRWORA’s statutory

 4    definition. In its guidance on PRWORA, HHS stated “the term ‘grant’ in Part A
 5    refers to financial awards to individuals; it does not include so-called ‘block

 6    grants’ which are provided to states or localities[.]” HHS Notice, PRWORA;

 7    Interpretation of ‘Federal Public Benefit,’ 63 FR 41658, 41659, 1998 WL 435846

 8    (Aug. 4, 1998) (HHS Notice). Assistance “generally targeted to communities”

 9    and does not “mandate ineligibility for individuals [who] do not meet certain

10    criteria,” like HEERF, is not a “federal public benefit.” Id. at 41659.

11          HHS’s reasoned interpretation of “grant” is far more persuasive than the
12    Department’s vague reference to dictionary definitions. ECF No. 52 at 7-8. HHS

13    promulgated its Notice shortly after PRWORA’s passage, was tasked by

14    PRWORA to aid implementation of its restrictions, and administers many of

15    PRWORA’s most iconic programs, such as TANF and SNAP. By contrast, the

16    Department fails to provide any other interpretation of “federal public benefits”

17    by itself or other agencies that supports its limited construction, and does not have

18    authority to “administer” Section 18004 or determine that PRWORA applies. The

19    Northern District of California rightfully believed the HHS Notice was more

20    applicable to HEERF than the Department’s post-hoc rationalizations, and this

21    Court should do the same. Oakley, 2020 WL 3268661, at *22.

22

      PLAINTIFF’S REPLY IN SUPPORT                  6           ATTORNEY GENERAL OF WASHINGTON
                                                                         Complex Litigation
      OF ITS MOTION FOR PARTIAL                                      800 Fifth Avenue, Suite 2000
                                                                       Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                      (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR    ECF No. 61    filed 07/21/20   PageID.951 Page 12 of 17




 1          Many federal agencies acknowledge that “many government-funded
 2    programs and services . . . are not considered ‘federal public benefits’ ” and

 3    therefore “not limited” by PRWORA. U.S. Dep’t of Justice, et al., Joint Letter on

 4    Immigrant Access to Housing and Services, at 1, 3 (Aug. 5, 2016),

 5    https://www.hhs.gov/sites/default/files/Joint-Letter-August-2016.pdf               (last

 6    visited July 21, 2020). The State’s Motion accordingly cited multiple grant

 7    programs that are not federal public benefits under PRWORA, which the

 8    Department ignores. See ECF 37 at 12-13; see also Ellis G. Goldman, Personal

 9    Responsibility and Work Opportunity Reconciliation Act of 1996, U.S. Dep’t of

10    Housing       and      Urban        Development         (Jan.        16,        2001),

11    https://www.hud.gov/sites/documents/DOC_38164.PDF (last visited July 21,

12    2020) (explaining that “[g]rants under the Lead Hazard Control Program” are not

13    a “federal public benefit” because they “are not provided directly to individuals,

14    but to States and local governments.”). These programs, many of which include

15    block grants and are not addressed in any amendment to PRWORA, demonstrate

16    that PRWORA’s reach is not automatic to all federal spending programs.

17          Second, HEERF funds are not directed “to an individual, household, or

18    family eligibility unit . . . .” HHS Notice at 41658. HHS advises that a “federal

19    public benefit” “generally include[s] agreements or arrangements between

20    Federally funded programs and individuals, such as research grants, student

21    loans, or patent licenses.” Id. at 41659 (emphasis added). HHS also notes: “unless

22

      PLAINTIFF’S REPLY IN SUPPORT                7           ATTORNEY GENERAL OF WASHINGTON
                                                                       Complex Litigation
      OF ITS MOTION FOR PARTIAL                                    800 Fifth Avenue, Suite 2000
                                                                     Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                    (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR      ECF No. 61     filed 07/21/20   PageID.952 Page 13 of 17




 1    the authorizing statutes require that the characteristics of these groups form the
 2    basis for denial of services or benefits, these are not benefits” that go to eligibility,

 3    and not federal public benefits to individuals. Id. The CARES Act does not have

 4    an “eligibility unit” for individual students. See Oakley, 2020 WL 3268661, at

 5    *15 (“HEERF relief is targeted toward IHEs to provide aid to their students, not

 6    directed to individual eligibility units.”). The Department’s argument suggesting

 7    HHS lacked authority to issue the Notice is baseless. ECF No. 52 at 11-12. HHS

 8    had authority under PRWORA to assist in its implementation and HHS

 9    “administers” a number of programs subject to the PRWORA. See ECF No. 37

10    at 9-10. By contrast, the Department does not “administer” HEERF and lacks

11    rulemaking authority for HEERF. ECF No. 31 at 8-9.

12           The Department’s descriptions of the distribution system for HEERF funds

13    frequently ignore the institutional focus of Section 18004, which provides the key

14    distinction between HEERF and the individually-focused programs the

15    Department cites in their Opposition. ECF No. 52 at 8-9. Pimentel v. Dreyfus, for

16    instance, concerned the federal food stamp programs enshrined in SNAP, a

17    long-term welfare program provided directly to individuals, and a type of “federal

18    public benefit” explicitly covered by PRWORA. Pimentel v. Dreyfus, 670 F.3d

19    1096, 1099-1101 (9th Cir. 2012); see also 8 U.S.C. § 1612(a)(2)(D)(ii)

20    (PRWORA provision addressing food stamps). Nothing in Pimentel allows the

21    federal government to prevent institutional grantees from using their discretion

22

      PLAINTIFF’S REPLY IN SUPPORT                    8           ATTORNEY GENERAL OF WASHINGTON
                                                                           Complex Litigation
      OF ITS MOTION FOR PARTIAL                                        800 Fifth Avenue, Suite 2000
                                                                         Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                        (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR     ECF No. 61    filed 07/21/20    PageID.953 Page 14 of 17




 1    to spend certain grant funds on noncitizens.
 2          Moreover, the Department’s offhand comparison of HEERF funds to Title

 3    IV federal student loans defies logic and its own prior statements. ECF No. 52 at

 4    13. The Department already stated that it does not consider HEERF funds to be

 5    federal financial aid. See ECF No. 6-1, Ex. C (“The Secretary does not consider

 6    these individual emergency financial aid grants to constitute Federal financial aid

 7    under Title IV of the HEA.”). This provides the key distinction between this case

 8    and    Mashiri,    which     concerned      federal    Stafford      loans,      another

 9    individually-focused federal program of long-term dependence that specifically

10    conditions federal financial aid on a student’s immigration status. Mashiri v.

11    Dep’t of Educ., 724 F.3d 1028, 1032 (9th Cir. 2013).

12          To that end, the Department’s argument that HEERF funds are “cash

13    payments” is irrelevant because the grants are directed to institutions from

14    congressionally-appropriated funds—not to individuals. ECF No. 52 at 11. If

15    Congress viewed HEERF funds as individually-focused cash benefits, it could

16    have instilled an immigration status verification requirement, as it does for

17    SNAP, federal student loans, and other programs explicitly subject to PRWORA.

18    See, e.g., 7 C.F.R. § 272.11 (2020) (requiring state agencies to “verify the eligible

19    status of all aliens applying for SNAP benefits”); 20 U.S.C. § 1091(g) (2020)

20    (Title IV requirement to verify immigration status for federal student loans).

21    See generally U.S. Dep’t of Justice, “Interim Guidance on Verification of

22

      PLAINTIFF’S REPLY IN SUPPORT                   9          ATTORNEY GENERAL OF WASHINGTON
                                                                         Complex Litigation
      OF ITS MOTION FOR PARTIAL                                      800 Fifth Avenue, Suite 2000
                                                                       Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                      (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR    ECF No. 61     filed 07/21/20   PageID.954 Page 15 of 17




 1    Citizenship, Qualified Alien Status and Eligibility Under Title IV of the Personal
 2    Responsibility and Work Opportunity Reconciliation Act of 1996,” 62 FR

 3    61344-02 (Nov. 17, 1997) (DOJ Guidance). But Congress did not do this. Instead,

 4    as Secretary DeVos noted, it provided institutions with “significant discretion on

 5    how to award this emergency assistance to students,” noting “each institution

 6    may develop its own system and process for determining how to allocate these

 7    funds, which may include distributing the funds to all students or only to students

 8    who demonstrate significant need.” ECF No. 6-1, Ex. B (emphasis added).

 9          Finally, the verification requirement is key to PRWORA’s application.

10    PRWORA itself explicitly provides that nonprofit charitable organizations—

11    which include “educational organizations”—that implement federal programs are

12    not required to verify immigration status, and cannot be punished for distributing

13    benefits to noncitizens. 8 U.S.C. § 1642(d) (2020); DOJ Guidance, 62 FR at

14    61345-46. Likewise, the Department cannot punish institutional recipients of

15    HEERF funds for exercising their “significant discretion” to disperse assistance

16    to its noncitizen students. See HHS Notice at 41660 (“Programs that are primarily

17    designed to target and provide services to communities should not be burdened

18    with new verification procedures merely because they may include some services

19    that flow more directly to the individual, household or family.”).

20                                 III.   CONCLUSION
21          For the foregoing reasons this Court should grant the State’s Motion.

22

      PLAINTIFF’S REPLY IN SUPPORT                 10          ATTORNEY GENERAL OF WASHINGTON
                                                                        Complex Litigation
      OF ITS MOTION FOR PARTIAL                                     800 Fifth Avenue, Suite 2000
                                                                      Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                     (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR   ECF No. 61   filed 07/21/20   PageID.955 Page 16 of 17




 1         RESPECTFULLY SUBMITTED this 21st day of July 2020.
 2                                       ROBERT W. FERGUSON
                                         Attorney General of Washington
 3
 4                                       /s/ Spencer W. Coates
                                         SPENCER W. COATES, WSBA #49683
 5                                       R. JULY SIMPSON, WSBA #45869
                                         JEFFREY T. SPRUNG, WSBA #23607
 6                                       PAUL M. CRISALLI, WSBA #40681
                                         Assistant Attorneys General
 7                                       800 Fifth Avenue, Suite 2000
                                         Seattle, WA 98104-3188
 8                                       (206) 464-7744
                                         spencer.coates@atg.wa.gov
 9                                       july.simpson@atg.wa.gov
                                         jeff.sprung@atg.wa.gov
10                                       paul.crisalli@atg.wa.gov
                                         Attorneys for Plaintiff State of Washington
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      PLAINTIFF’S REPLY IN SUPPORT              11          ATTORNEY GENERAL OF WASHINGTON
                                                                     Complex Litigation
      OF ITS MOTION FOR PARTIAL                                  800 Fifth Avenue, Suite 2000
                                                                   Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                  (206) 464-7744
      NO. 2:20-cv-00182-TOR
 Case 2:20-cv-00182-TOR    ECF No. 61   filed 07/21/20   PageID.956 Page 17 of 17




 1                          DECLARATION OF SERVICE
 2          I hereby declare that on this day I caused the foregoing document to be

 3    electronically filed with the Clerk of the Court using the Court’s CM/ECF System

 4    which will serve a copy of this document upon all counsel of record.

 5          DATED this 21st day of July 2020, at Seattle, Washington.

 6
                                            /s/ Spencer W. Coates
 7                                          SPENCER W. COATES, WSBA #49683
                                            Assistant Attorney General
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      PLAINTIFF’S REPLY IN SUPPORT               12          ATTORNEY GENERAL OF WASHINGTON
                                                                      Complex Litigation
      OF ITS MOTION FOR PARTIAL                                   800 Fifth Avenue, Suite 2000
                                                                    Seattle, WA 98104-3188
      SUMMARY JUDGMENT                                                   (206) 464-7744
      NO. 2:20-cv-00182-TOR


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