Reply to opposition to Motion, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 64 (August 28, 2020)

Summary

Reply in support of plaintiffs' motion for partial summary judgment in National Association for the Advancement of Colored People (NAACP), et al. v. Elisabeth "Betsy" D. DeVos and the United States Department of Education, Case No. 1:20-cv-01996 (DLF), U.S. District Court for the District of Columbia, Doc. 64, dated August 28, 2020. The reply argues that the Rule is facially unlawful under the APA because the Secretary lacked delegated authority to promulgate it, and that Section 18005 of the CARES Act is not ambiguous on the allocation formula. It also argues that the defendants do not dispute that nationwide vacatur is the appropriate remedy. The conclusion asks the Court to vacate the Rule in its entirety.

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“Reply to opposition to Motion, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 64 (August 28, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/reply-to-opposition-to-motion-naacp-et-al-v-devos-no-1-20-cv-01996-d-d-2662553932/, SHA-256 855bee631ff866885bd82fcd17c1e97238c0b147943872c36fe5e0592afc0450.

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE Case No. 1:20-cv-01996 (DLF)
(NAACP), et al.,

Plaintiffs,

vs.

ELISABETH “BETSY” D. DEVOS, in her official
capacity as the United States Secretary of Education,
and the UNITED STATES DEPARTMENT OF
EDUCATION,

Defendants.

REPLY IN SUPPORT OF PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT
Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 2 of 23

TABLE OF CONTENTS

Page

INTRODUCTION ...........................................................................................................................1
ARGUMENT ...................................................................................................................................2
I. SUMMARY JUDGMENT STANDARD............................................................................2
II. THE RULE IS FACIALLY UNLAWFUL UNDER THE APA .........................................3
A. The Secretary Lacked Any Delegated Authority to Promulgate the Rule
and Therefore It Must Be Vacated ...........................................................................3
B. Section 18005 of the CARES Act Is Not Ambiguous as to the Allocation
Formula for Equitable-Services Funding .................................................................5
1. “Provide equitable services in the same manner as” clearly and
unambiguously includes the manner of calculating the proportion
of funds for equitable services under section 1117. .....................................6
2. None of the irrelevant statutory provisions Defendants cite render
Section 18005’s allocation formula ambiguous. .........................................8
3. There is no inconsistency in the characterization of section 18005
by plaintiffs in the various lawsuits challenging the Rule. ........................10
C. The Rule Is Not Entitled To Deference, Because It Is An Unreasonable
Interpretation Of The Statute .................................................................................11
III. DEFENDANTS DO NOT MEANINGFULLY CONTEST PLAINTIFFS’
CONSTITUTIONAL CLAIMS .........................................................................................13
IV. DEFENDANTS DO NOT DISPUTE THAT NATIONWIDE VACATUR IS THE
APPROPRIATE REMEDY IF THE RULE IS FACIALLY UNLAWFUL .....................15
CONCLUSION ..............................................................................................................................16

i
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TABLE OF AUTHORITIES

Page

FEDERAL CASES

Adamski v. McHugh,
304 F. Supp. 3d 227 (D.D.C. 2015) ...................................................................................14, 15

Am. Bioscience, Inc. v. Thompson,
269 F.3d 1077 (D.C. Cir. 2001) .................................................................................................2

Am. Petroleum Inst. v. EPA,
52 F.3d 1113 (D.C. Cir. 1995) ...................................................................................................4

Ass’n of Private Sector Colls. and Univs. v. Duncan,
870 F. Supp. 2d 133 (D.D.C. 2012) ...........................................................................................4

Chamber of Commerce of U.S. v. Reich,
74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................14

City of Los Angeles v. Barr,
941 F.3d 931 (9th Cir. 2019) .....................................................................................................4

City of Philadelphia v. Att’y Gen. of U.S.,
916 F.3d 276 (3d Cir. 2019).......................................................................................................4

Dalton v. Specter,
511 U.S. 462 (1994) ...........................................................................................................13, 14

Dart v. United States,
848 F.2d 217 (D.C. Cir. 1988) .................................................................................................15

District of Columbia v. U.S. Dep’t of Agric.,
444 F. Supp. 3d 1 (D.D.C. 2020) .............................................................................................13

Harmon v. Thornburgh,
878 F.2d 484 (D.C. Cir. 1989) .................................................................................................15

Lawrence Cty. v. Lead-Deadwood Sch. Dist. No. 40-1,
469 U.S. 256 (1985) ...................................................................................................................7

Michigan v. DeVos,
No. 3:20-cv-04478, ECF No. 82 (N.D. Cal. Aug. 26, 2020) .....................................................5

Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ...................................................................................................................6

ii
Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 4 of 23

TABLE OF AUTHORITIES
(Continued)

Page

Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399 (D.C. Cir. 1998) ...............................................................................................15

Nat’l Mining Ass’n v. U.S. Dep’t of the Interior,
105 F.3d 691 (D.C. Cir. 1997) ...................................................................................................4

Oakley v. Devos,
No.20-cv-03215-YGR, 2020 WL 3268661 (N.D. Cal. June 17, 2020) .....................................5

Partlo v. Johanns,
No. CIV.A.04-1462 CKK, 2006 WL 1663380, at *13 (D.D.C. June 11, 2006),
aff’d, 224 F. App’x 7 (D.C. Cir. 2007) ......................................................................................7

Sierra Club v. Mainella,
459 F. Supp. 2d 76 (D.D.C. 2006) .............................................................................................2

Sierra Club v. Trump,
963 F.3d 874 (9th Cir. 2020) ...................................................................................................14

South Dakota v. Dole,
483 U.S. 203 (1987) .................................................................................................................14

Tex. Alliance for Home Care Servs. v. Sebelius,
681 F.3d 402 (D.C. Cir. 2012) .................................................................................................14

Util. Air Regulatory Grp. v. EPA,
573 U.S. 302 (2014) .............................................................................................................4, 13

Washington v. DeVos,
No. 2:20-cv-1119-BJR, 2020 WL 4922256 (W.D. Wash. Aug. 21, 2020) ................. 3, passim

Yates v. United States,
574 U.S. 528 (2015) ...................................................................................................................9

FEDERAL STATUTES

5 U.S.C. ch. 5, subch. I § 500 et seq.
Administrative Procedure Act....................................................................................................2

20 U.S.C. § 1221e-3.........................................................................................................................3

20 U.S.C. § 3474 ..............................................................................................................................3

Pub. L. No. 116-136, 134 Stat. 281 (2020)
(“CARES Act”), Coronavirus Aid, Relief, and Economic Security Act ..................... 1, passim
iii
Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 5 of 23

TABLE OF AUTHORITIES
(Continued)

Page

FEDERAL RULES

Fed. R. Civ. P. 56(a) ........................................................................................................................2

FEDERAL REGULATIONS

85 Fed. Reg. 39,479 (July 1, 2020) ..............................................................................................1, 8

OTHER AUTHORITIES

Michigan v. DeVos,
No. 3:20-cv-04478-JD, ECF No. 35 (N.D. Cal. July 20, 2020) ..............................................10

Washington v. DeVos,
No. 2:20-cv-01119-BJR, ECF No. 51 (W.D. Wash. Aug. 9, 2020) ........................................10

Webster’s Third New International Dictionary (Unabridged) 1827 ................................................6

iv
Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 6 of 23

INTRODUCTION

Defendants’ Opposition concedes that the CARES Act does not expressly give the

Department rulemaking authority. Instead, Defendants claim that the ambiguity of the statute

provides the basis for promulgating the Rule governing allocation of funds for equitable services

under the Department’s general rulemaking powers. There are two fatal problems with

Defendants’ position. First, the Department’s general rulemaking authority is not a sufficient

basis, under well-established law, to promulgate rules governing “formula grants” in the CARES

Act that must be distributed according to specific statutory guidelines. Second, the CARES Act

is not at all ambiguous as to the allocation of the funds for equitable services. The statute’s

direction that local education agencies “shall provide equitable services in the same manner as

provided under section 1117 of the ESEA of 1965 to students and teachers in non-public

schools” means what it says: funds shall be allocated for the benefit of private-school students

based upon the number of low-income students in private schools—just as public schools have

done for decades under section 1117 of the ESEA. Without rulemaking authority or statutory

ambiguity, the Rule must be vacated.

Defendants claim that “a ‘mechanistic application’ of § 1117 to § 18005’s equitable-

services requirement would ‘disadvantage’ private-school students,” ECF No. 46 (“Opp.”) at 6

(quoting 85 Fed. Reg. at 39,479). Defendants, however, do not have discretion to make such a

policy judgment that requires rewriting the statute. When faced with the unambiguous text of a

statute, a “mechanistic application” is all that an agency is permitted to do. Likewise,

Defendants’ assertion that they “reasonably concluded that ‘in the same manner’ does not

incorporate section 1117’s proportional-apportionment provisions,” Opp. at 9, is wrong—

Defendants cannot rewrite the parts of the incorporated statute with which they do not agree. In

short, Defendants cannot substitute their policy preference for a clear statutory mandate by

1
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Congress. The Rule is ultra vires and as such violates the APA as well as the Spending Clause

and the constitutional separation of powers. The proper remedy is vacatur, which has nationwide

effect. Prompt and permanent vacatur is particularly important here because school districts

need immediate clarity as they start this challenging year and two other courts have issued

preliminary injunctions enjoining the Rule for only some districts and states, resulting in a

patchwork of mandates.

ARGUMENT

I. SUMMARY JUDGMENT STANDARD

This Court grants summary judgment if the moving party “shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). In an APA case, summary judgment “serves as the mechanism for deciding, as

a matter of law, whether the agency action is . . . consistent with the APA standard of review.”

Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90 (D.D.C. 2006). Thus “the entire case . . . is a

question of law,” and the district court “sits as an appellate tribunal.” Am. Bioscience, Inc. v.

Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (quotation marks and footnote omitted).

Under the APA, the Court “shall decide all relevant questions of law, interpret

constitutional and statutory provisions, and determine the meaning or applicability of the terms

of an agency action.” 5 U.S.C. § 706. The Court must “hold unlawful and set aside agency

action . . . found to be . . . arbitrary, capricious, an abuse of discretion, or otherwise not in

accordance with law,” or “in excess of statutory . . . authority.” 5 U.S.C. § 706(2).

Because the Department has not yet produced the administrative record, only Plaintiffs’

constitutional and APA claims concerning the Department’s constitutional and statutory

authority to issue the Rule—Counts One through Four of the First Amended Complaint, see ECF

No. 35 at 49–54—are before the Court on this motion for partial summary judgment.

2
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II. THE RULE IS FACIALLY UNLAWFUL UNDER THE APA

A. The Secretary Lacked Any Delegated Authority to Promulgate the Rule and
Therefore It Must Be Vacated

It is undisputed that the CARES Act does not expressly delegate specific rulemaking

authority to the Secretary to promulgate the Rule. See Opp. at 10 & n.4 (acknowledging that the

Department engaged in rulemaking without Congress “explicitly referencing its authority”); see

also Washington v. DeVos, No. 2:20-cv-1119-BJR, 2020 WL 4922256, at *6 (W.D. Wash. Aug.

21, 2020) (“The Department does not, and indeed cannot, argue that Congress explicitly

delegated it rulemaking authority over the CARES Act, because such authority is simply absent

from its text.”).

The general rulemaking statutes upon which Defendants rely, 20 U.S.C. § 1221e-3 and §

3474, are of no help to Defendants. Section 3474 authorizes the Secretary to prescribe rules and

regulations only to the extent “necessary or appropriate to administer and manage the functions

of the Secretary or the Department.” 20 U.S.C. § 3474. And section 1221e-3 confers general

rulemaking authority on the Secretary only to the extent necessary “to carry out functions

otherwise vested in the Secretary by law or by delegation of authority pursuant to law, and

subject to limitations as may be otherwise imposed by law.” 20 U.S.C. § 1221e-3.

Here, the Secretary has no authority under the CARES Act to “administer” any

“function” with respect to the GEER and ESSER funds. See 20 U.S.C. § 1221e-3. As Plaintiffs

set out in their Motion, ECF No. 36-1 (“Mot.”) at 16–17, sections 18002 and 18003 of the

CARES Act, which govern the GEER and ESSER Funds, direct the Secretary to do nothing

more than distribute the majority of the GEER and ESSER funds to either the Governor of each

state, or to each State Educational Agency, in accordance with prescribed formulas. CARES

Act, Pub. L. No. 116-136, §§ 18002(b) & 18003(b), 134 Stat. 281, 565 (2020) (to be codified as

20 U.S.C. § 3401). Once GEER and ESSER funds are distributed, they are not part of a program

3
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“administered” by the Department. Defendants do nothing to refute these arguments; they

simply cite the Secretary’s general rulemaking authority without further explanation. See Opp.

at 10.

Defendants’ invocation of the Secretary’s general rulemaking authority is particularly

inapposite where, as here, the Rule imposes conditions on the use of mandatory federal grants to

be distributed according to specific statutory guidelines, often referred to as “formula grants.”

Courts have expressed serious skepticism when an agency attempts to impose special conditions

on mandatory federal grants absent express authority to do so—and one Circuit has held such

rulemaking is barred—because allowing an agency to impose additional conditions “would be

antithetical to the concept of a formula grant.” City of Los Angeles v. Barr, 941 F.3d 931, 942

(9th Cir. 2019) (holding that agencies have no rulemaking authority over formula grants); see

also City of Philadelphia v. Att’y Gen. of U.S., 916 F.3d 276, 288 (3d Cir. 2019) (concluding that

Congress would not hide “such a broad power” to impact mandatory federal grants “in a statute

outlining ministerial duties”). Courts “expect Congress to speak clearly if it wishes to assign to

an agency decisions of vast economic and political significance.” Util. Air Regulatory Grp. v.

EPA, 573 U.S. 302, 324 (2014) (internal quotation marks and citation omitted).

Further, an agency’s “general rulemaking provisions” do not permit it “to trump

Congress’s specific statutory directive.” Nat’l Mining Ass’n v. U.S. Dep’t of the Interior, 105

F.3d 691, 694 (D.C. Cir. 1997); see also Ass’n of Private Sector Colls. and Univs. v. Duncan,

870 F. Supp. 2d 133, 155 (D.D.C. 2012) (vacating portion of Department of Education rule,

despite general rulemaking authority, where rule was “not in accordance with” substantive

statute). An agency “cannot rely on its general authority to make rules necessary to carry out its

functions when a specific statutory directive defines the relevant functions of [that agency] in a

particular area.” Am. Petroleum Inst. v. EPA, 52 F.3d 1113, 1119 (D.C. Cir. 1995).

4
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In accordance with these principles, two courts have already preliminarily found that the

Rule is unlawful because the Secretary lacked rulemaking authority to issue the Rule.

Washington, 2020 WL 4922256, at *6 (“[N]othing in either the text or construction of Section

18005 of the CARES Act evidences an intent to import general rulemaking authority.”);

Michigan v. DeVos, No. 3:20-cv-04478, ECF No. 82 at 12 (N.D. Cal. Aug. 26, 2020) (“The

Department went well beyond its statutory authority by trying to replace the share formula

mandated by Congress in Section 18005(a) with one of its own choosing.”); see also Oakley v.

Devos, No.20-cv-03215-YGR, 2020 WL 3268661, at *9 (N.D. Cal. June 17, 2020) (noting that

“Congress has been explicit when it intended to provide the Secretary with authority to establish

eligibility criteria or impose conditions” on the CARES Act funds).

For these reasons, the Department’s general rulemaking authority does not allow it to go

beyond the limited functions it is authorized to perform under the CARES Act. Because the

Secretary lacked any authority to promulgate the Rule, the Rule is void.

B. Section 18005 of the CARES Act Is Not Ambiguous as to the Allocation
Formula for Equitable-Services Funding

Defendants’ sole argument in defense of the Rule is that section 18005 is ambiguous,

requiring clarification in the form of a regulation. Defendants contend that the statute is

ambiguous for two reasons: First, they claim there is tension between section 1117’s focus on

low-income students and the CARES Act’s goal of helping all students in all schools. See Opp.

at 8–9. Second, they claim that because section 18005 includes other provisions similar to the

provisions of section 1117, “[i]f the CARES Act’s use of the phrase ‘in the same manner’

incorporated every jot and tittle of section 1117, both the consultation and the public-control

provisions of section 18005 would be superfluous.” Opp. at 9. These invented “ambiguities” do

not give Defendants a basis for issuing a Rule at all, and certainly not a Rule that fails to address

the claimed ambiguities but contradicts the plain dictates of the statute.

5
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1. “Provide equitable services in the same manner as” clearly and
unambiguously includes the manner of calculating the proportion of
funds for equitable services under section 1117.

Defendants admit—as they must—that the plain language of the statute requires LEAs

“to provide equitable services to private school students ‘in the same manner’ as specified in

section 1117 of the ESEA.” Opp. at 8. Defendants then inexplicably contend that the

“Department reasonably concluded that ‘in the same manner’ does not incorporate section

1117’s proportional-apportionment provisions.” Opp. at 9. To fill this self-created “ambiguous”

hole in the statute, Defendants promulgated a Rule that either requires a different apportionment

formula altogether, or imposes spending restrictions on LEAs that choose to follow section

1117’s apportionment formula. But the Department cannot create an ambiguity by reading out

portions of the incorporated statute it does not like and filling the resulting void with its own

policy preferences.

There is simply no ambiguity here permitting any type of rulemaking by the Department.

First, section 18005 instructs that LEAs “shall provide equitable services in the same manner as

provided under section 1117.” “Provide” means “to supply what is needed for sustenance or

support,” “to fit out or fit up,” or “to supply for use.” Webster’s Third New International

Dictionary (Unabridged) 1827. In other words, “provide” means to supply funds in the same

manner. Accord Michigan, No. 3:20-cv-4478-JD, ECF No. 82 at 7 (“The words Congress used

in Section 18005(a) of the CARES Act are familiar and uncomplicated, to say the least.”).

Second, section 18005 instructs that LEAs “shall provide equitable services in the same

manner as provided under section 1117.” As Plaintiffs explained in their Motion, see Mot. at 19,

“in the same manner as” means “to use the same methodology and procedures,” Nat’l Fed’n of

Indep. Bus. v. Sebelius, 567 U.S. 519, 545–46 (2012) (“[The Affordable Care Act’s] command

that the penalty be ‘assessed and collected in the same manner’ as taxes is best read as referring

to those chapters [of the Internal Revenue Code] and giving the [Treasury] Secretary the same
6
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authority and guidance with respect to the penalty.”); see also Lawrence Cty. v. Lead-Deadwood

Sch. Dist. No. 40-1, 469 U.S. 256, 271 (1985) (reading a state statute requiring that federal funds

be distributed “in the same manner as taxes are distributed” to mean that localities allocated tax

revenues and federal aid in proportionally identical ways); Partlo v. Johanns, No. CIV.A.04-

1462 CKK, 2006 WL 1663380, at *13 (D.D.C. June 11, 2006) (holding that statute requiring

Secretary to “‘make assistance available under this section in the same manner as provided

under’ the 2000 [version of the statute]” “directed conformity” with the prior statute), aff’d, 224

F. App’x 7 (D.C. Cir. 2007).

Defendants do not distinguish this precedent in any way. See generally Opp. at 8–11. To

use the same “methodology and procedures” to calculate equitable-services funding as under

section 1117 requires allocation of funds based upon the number of low-income private-school

students, and not the total number of private-school students.

Third, section 18005 instructs that LEAs “shall provide equitable services in the same

manner as provided under section 1117.” “[H]istorically speaking, Congress’s reference to

Section 1117 of the ESEA cannot be construed as casual or incidental; it is an explicit citation to

a formula with which LEAs are well acquainted.” Washington, 2020 WL 4922256, at *8. Thus,

there is no ambiguity in the cross-reference to the provision of equitable services under section

1117, which refers “to a simple, familiar, and time-tested formula” well-known to LEAs and to

the Department. Id.; see Mot. at 8 (detailing the Department’s decades-old guidance interpreting

section 1117 to require the calculation of equitable-services funding based on the number of low-

income students in private schools).

For these reasons, the direction for allocation of funds for equitable services under the

CARES Act is clear and unambiguous.

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2. None of the irrelevant statutory provisions Defendants cite render
Section 18005’s allocation formula ambiguous.

Defendants have no answers to the above arguments. Instead, they offer two theories

outside the plain text of the provision at issue for why that provision is ambiguous, neither of

which creates a basis for promulgating the Rule.

First, Defendants argue that Section 18005 is ambiguous because of the “disparate

purposes of the CARES Act (to provide emergency relief to all students and schools) and Title I-

A (to provide services for low-achieving students).” Opp. at 9; see also id. at 13 (“The

Department’s interpretation rests on the fact that CARES Act funds can be used more broadly

than Title I-A funds, and that the national emergency prompting passage of the CARES Act ‘has

harmed all our Nation’s students by disrupting their education.’” (citing 85 Fed. Reg. at

39,479)).

Even if the “purpose” of the CARES Act could supersede the plain text, Defendants are

wrong in their characterization of that purpose. The Act expressly provides that one of the

purposes of the ESSER Fund is to address “the unique needs of low-income children or

students.” CARES Act, Pub. L. No. 116-136, § 18003(d)(4), 134 Stat. 281, 566 (to be codified

as 20 U.S.C. § 3401) (emphasis added). As one court has already held, “[d]istribution of funds

under the poverty-based formula will not result in private schools receiving no [Education

Stabilization Fund] funding; only in receiving funding in a smaller proportion than they would

under the Department-created formula. This reflects Congress’s stated intent in the CARES Act

to distribute education funding to all, but to concentrate on those in direst need.” Washington,

2020 WL 4922256, at *7. The Act’s purpose thus supports Plaintiffs’ reading of section 18005.

Second, Defendants argue that section 18005 is ambiguous because it contains two

provisions—one that requires LEAs to consult with private schools and one that requires public

schools to maintain control over all CARES Act funds—that are substantively similar to

8
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provisions of section 1117. See Opp. at 9, 12. Accordingly, Defendants’ argument goes, if

section 18005(a)’s reference to section 1117 “incorporated every jot and tittle” of section 1117,

section 18005’s consultation and control provisions would be rendered superfluous. See id. at 9.

In fact, the presence of separate consultation and control requirements proves that the

allocation mechanism under section 1117 must be incorporated in section 18005(a). Because, as

Defendants recognize, section 18005 elsewhere includes consultation and control requirements,

section 18005(a) must incorporate section 1117’s allocation formula, or else its reference to

“section 1117” would be meaningless. Courts use canons of construction “to resolve ambiguity,

not create it.” Yates v. United States, 574 U.S. 528, 564 (2015). Far from being ambiguous, the

CARES Act’s allocation, consultation, control, and use provisions make sense: Section

18005(a) directs how the funds are to be allocated (“in the same manner as Section 1117,” in

consultation with private schools), section 18005(b) directs how the funds are to be controlled,

and sections 18002 and 18003 direct how the funds are to be used.1

In any event, even if one concludes that the CARES Act’s reference to section 1117 also

incorporates the consultation and control provisions and thus makes them duplicative of portions

of section 18005, this does not provide a basis for the Department to rewrite the allocation

provision of section 1117. That section remains, because there is no ambiguity as to how that

1
The same conclusion flows from the CARES Act’s allocation of GEER and ESSER funds to
States and State Educational Agencies (“SEAs”). In prescribing how the GEER and ESSER
Funds were to be allocated to Governors and SEAs, respectively, Congress specified that those
funds should be awarded—either using a specific formula of 60% based on total population and
40% based on the relative number of children as counted under Title I, in the case of GEER, or
“in proportion to” the amount of funds the SEA received pursuant to Title I-A in the most recent
fiscal year, in the case of ESSER. Congress had to prescribe formulas for allocation of funds to
Governors and SEAs because there is no allocation provision concerning those entities in section
1117. By contrast, section 1117 already includes an allocation provision for LEAs, and
Congress expressly incorporated that provision into section 18005(a).
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provision of section 1117—and therefore section 18005—is to be implemented.2 Yet the Rule

effectively excises that provision by forcing LEAs either to use a different formula, or to use the

section 1117 formula but with extra-statutory conditions attached.

3. There is no inconsistency in the characterization of section 18005 by
plaintiffs in the various lawsuits challenging the Rule.

In a further effort to manufacture ambiguity in the CARES Act, Defendants argue that

“plaintiffs in separate actions challenging the [R]ule have advanced diverging interpretations of

the statute.” Opp. at 12. Defendants contend that “in an action pending in the Northern District

of California, Michigan and other states argue that section 18005 incorporates section 1117 in its

entirety—including ‘Section 1117’s eligibility requirements providing that only at-risk private-

school students are entitled to services.’” Opp. at 12 (quoting Plts. Mot. for Prelim. Inj.,

Michigan v. DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 7 (N.D. Cal. July 20, 2020)).3 They

claim that the Washington plaintiffs disagree. Id. This point is wrong and also irrelevant.

Defendants’ citation to the Michigan plaintiffs’ brief (Opp. at 12) is to the background

section describing Defendants’ April 2020 guidance document. See id. (quoting Michigan v.

DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 7). It is not a statement of the plaintiffs’ position

in that case. Nor do the Michigan plaintiffs and the Washington plaintiffs disagree. See

Washington v. DeVos, No. 2:20-cv-01119-BJR, ECF No. 51 at 3 (W.D. Wash. Aug. 9, 2020)

(“Because the CARES Act refers to the methodology and procedures of Section 1117, the non-

methodological and non-procedural aspects of Section 1117 are not necessarily important here.

The formula is what matters.”); Michigan v. DeVos, No. 3:20-cv-04478-JD, ECF No. 35 at 12

3
Defendants cite this portion of the Michigan plaintiffs’ memorandum in support of their motion
for preliminary injunctive relief as ECF 34. The correct ECF number is 35.
10
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(“Congress chose to adopt proportional allocation under Title I-A of the ESEA, and the method

and procedure of Section 1117 of the ESEA for equitable services. . . .”).

Moreover, the issue here is whether there was ambiguity regarding the allocation of

funds that would necessitate the Rule on allocation. Plaintiffs in all actions challenging the Rule

agree that there is absolutely no ambiguity in the CARES Act about the proper allocation of

funds for equitable services, which every school district immediately understood when they read

the CARES Act based upon decades of implementing section 1117. There is nothing ambiguous

about the allocation formula under the statute that necessitated promulgation of the Rule.

C. The Rule Is Not Entitled To Deference, Because It Is An Unreasonable
Interpretation Of The Statute

Even if the CARES Act was ambiguous (and it is not), the Rule is an unreasonable

interpretation of the statute. Defendants contend that the “Department of Education resolved the

tension between the CARES Act and the provisions of section 1117 by reference to Congress’s

command that the services provided to private schools be ‘equitable.’” Opp. at 11 (quoting

CARES Act, Pub. L. No. 116-136, § 18005(a), 134 Stat. 281, 568 (to be codified as 20 U.S.C.

2401). That is, they decided that the use of the term “equitable” meant the funds should be

divided up equally between public- and private-school students. This is simply wrong.

The Department’s reading of the word “equitable” in section 18005 to mean “equal

funding” simply deletes the term of art “equitable services” from the statute. This is a decades-

old term well-understood by LEAs and the Department. See Mot. at 8. Defendants ignore the

well-understood meaning of the phrase. There is also no basis for concluding that Congress

intended the allocation of funds to be “equal” between public- and private-school students by

referring to “equitable services.” As the court in the Washington case reasoned, “the term

‘equitable’ in Section 18005 modifies ‘services,’ and does not refer, as the Department would

have it, to how funds should be apportioned. Thus, the context and plain meaning of this term

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 17 of 23

show that Congress meant” the funds should be apportioned exactly as “equitable services”

funds have been apportioned for decades. Washington, 2020 WL 4922256, at *17.

Nor is there any inequity here that needs to be remedied by the Department. Private

schools were able to obtain funding under the Payroll Protection Program (“PPP”)—funds

unavailable to the overwhelming majority of public schools. See generally CARES Act, Pub. L.

No. 116-136, § 1102, 134 Stat. 281, 286–94. Allowing private schools to double-dip at the

expense of public-school students would create an inequity, not eliminate one. Regardless,

Defendants are not permitted to impose their policy judgment about equity over the

unambiguous dictates of the statute.

The Rule is also unreasonable because Option Two imposes additional, entirely extra-

statutory restrictions—a prohibition on the use of funds for any non-Title I schools, and a

“supplement, not supplant” requirement on schools’ use of funds—which are nowhere to be

found in the provisions of the CARES Act governing elementary and secondary education. See

Mot. at 21–22. Tellingly, Congress did impose supplement-not-supplant requirements on the use

of other types of CARES Act funds. See, e.g., CARES Act, Pub. L. No. 116-136, § 3404(a)(3),

134 Stat. 281, 392 (to be codified as 42 U.S.C. § 296b) (Nursing Workforce Development

Program) (“Such Federal funds are intended to supplement, not supplant, existing non-Federal

expenditures for such activities.”). But Congress did not impose such requirements on

elementary- and secondary-education funds. Defendants offer no argument that the

“supplement, not supplant” restriction is lawful. To the contrary, they relegate mention of this

prominent provision of the Rule to a footnote that comes close to conceding it is unlawful,

arguing only that if the Court finds that condition is unauthorized under the statute, it should

sever it, rather than vacating the whole Rule. See Opp. at 11 n.5.

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 18 of 23

Likewise, the choice itself has no basis in the statute. Defendants concede that the

Department introduced the “choice” “in response to criticism from certain States that its

guidance was too inflexible.” Opp. at 6. But the Department cannot use a problem it created to

justify its extra-statutory Rule. A regulation that does not address the ambiguity it purports to

interpret and is contrary to the plain language of the statute would not be reasonable, even if the

Department had grounds for promulgating the rule. See Util. Air Regulatory Grp., 573 U.S. at

328 (“[T]he need to rewrite clear provisions of the statute should have alerted EPA that it had

taken a wrong interpretive turn. Agencies are not free to adopt . . . unreasonable interpretations

of statutory provisions and then edit other statutory provisions to mitigate the unreasonableness.”

(internal quotation marks and citation omitted)); District of Columbia v. U.S. Dep’t of Agric.,

444 F. Supp. 3d 1, 24–25 (D.D.C. 2020) (holding plaintiffs were likely to succeed on merits of

claim that rule was an unreasonable construction of ambiguous statute where “neither of the

Final Rule’s two core standards answers the question that Congress asked” (internal quotation

marks omitted)).

Because the Rule is in excess of the Secretary’s statutory authority and not in accordance

with law, the Court can and should vacate the Rule on these grounds.

III. DEFENDANTS DO NOT MEANINGFULLY CONTEST PLAINTIFFS’
CONSTITUTIONAL CLAIMS

In response to Plaintiffs’ arguments that the Rule is ultra vires in violation of the

constitutional separation of powers and violates the Spending Clause, Defendants argue only that

“there is no freestanding constitutional impediment to the Department’s actions,” because the

only source of Defendants’ authority is statutory. Opp. at 14. Citing Dalton v. Specter, 511 U.S.

462, 474 n.6 (1994), Defendants suggest that a plaintiff can never bring both an APA challenge

and a constitutional challenge to an agency regulation. See Opp. at 14.

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One court of appeals has already rejected the precise argument Defendants make here. In

Sierra Club v. Trump, 963 F.3d 874, 889–90 (9th Cir. 2020), the court rejected the government’s

argument that Dalton “means that when there is a claim that an Executive Branch official acted

in excess of his statutory authority, there is no constitutional violation.” As the court explained,

“Dalton does not hold that every action in excess of statutory authority is not a constitutional

violation. Rather, Dalton suggests that some actions in excess of statutory authority may be

constitutional violations, while others may not. Specifically, Dalton suggests that a

constitutional violation may occur when an officer violates an express prohibition of the

Constitution.” Id. The court went on to hold that the Appropriations Clause is just such an

express prohibition.

The same reasoning applies to the Spending Clause. Like the Appropriations Clause, the

Spending Clause “contains such a constitutional prohibition,” id.—namely, prohibiting

conditions on federal funds unless those conditions are “unambiguous[]” and related “to the

federal interest in particular . . . programs,” South Dakota v. Dole, 483 U.S. 203, 207 (1987)

(citations omitted). As with violations of the Appropriations Clause, then, violations of the

Spending Clause can give rise to an independent cause of action. See Sierra Club, 963 F.3d at

890.

Likewise, courts in this Circuit recognize two types of ultra vires claims—one that the

agency action is “in excess of statutory authority” or “not in accordance with law” under the

APA, and one that is a “non-statutory, non-APA ultra vires claim.” See Adamski v. McHugh,

304 F. Supp. 3d 227, 236–37 (D.D.C. 2015) (citing Tex. Alliance for Home Care Servs. v.

Sebelius, 681 F.3d 402, 408 (D.C. Cir. 2012)); Chamber of Commerce of U.S. v. Reich, 74 F.3d

1322, 1327 (D.C. Cir. 1996)). The latter “derives from the contention that the agency has acted

without the authority to do so, and it is based on the inherent power of the federal courts ‘to

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 20 of 23

reestablish the limits on [executive] authority’ through judicial review.” Id. at 237 (quoting Dart

v. United States, 848 F.2d 217, 224 (D.C. Cir. 1988)).

Accordingly, Defendants’ argument, see Opp. at 13–14, that these claims are not

freestanding lacks merit. Although the Court need not reach these claims if it concludes that the

Rule violates the APA, they provide an alternative, independent ground for vacating the Rule—

and one that goes uncontested on the merits by Defendants.

IV. DEFENDANTS DO NOT DISPUTE THAT NATIONWIDE VACATUR IS THE
APPROPRIATE REMEDY IF THE RULE IS FACIALLY UNLAWFUL

Defendants do not dispute that vacatur, which has nationwide effect, is the appropriate

remedy should the Court conclude that the Rule is facially unlawful.4 In this Circuit, “‘[w]hen a

reviewing court determines that agency regulations are unlawful, the ordinary result is that the

rules are vacated—not that their application to the individual petitioners is proscribed.’” Nat’l

Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (alteration in

original) (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989)).

Nationwide vacatur is particularly important here because school districts all over the country are

looking for clear direction on the allocation of these funds at a critically stressful time. Further,

two courts’ issuance of preliminary injunctions enjoining the Rule has resulted in various rules

for various districts. Washington, 2020 WL 4922256, at *11; Michigan, No. 3:20-cv-04478,

ECF No. 82 at 15. Prompt resolution of this issue permanently and on a nationwide basis is

essential.

4
Indeed, by arguing in a footnote that the Court should sever the Rule’s “supplement, not
supplant” requirement, instead of vacate the Rule, if the Court concludes that portion of it is
unlawful, Opp. at 11 n.5, Defendants implicitly concede that if the Rule is unlawful, vacatur is
the remedy.
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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 21 of 23

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that this Court hold that the Rule

is unlawful on its face, vacate the Rule in its entirety, and remand to the Department.

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 22 of 23

Dated: August 28, 2020 Respectfully submitted,

MUNGER, TOLLES & OLSON LLP
TAMERLIN J. GODLEY
(Admitted Pro Hac Vice)
JONATHAN KRAVIS
(D.C. Bar No. 973780)
ADELE M. EL-KHOURI
(D.C. Bar No. 1025090)
JESSICA REICH BARIL
(Admitted Pro Hac Vice)
DAVID P. THORESON
(Admitted Pro Hac Vice)

By: /s/ Adele M. El-Khouri
ADELE M. EL-KHOURI

TAMERLIN J. GODLEY
Tamerlin.Godley@mto.com
JESSICA REICH BARIL
Jessica.Baril@mto.com
DAVID P. THORESON
David.Thoreson@mto.com
MUNGER, TOLLES & OLSON LLP
350 South Grand Avenue, Fiftieth Floor
Los Angeles, California, 90017
Telephone: (213) 683-9100
Facsimile: (213) 687-3702

JONATHAN KRAVIS
Jonathan.Kravis@mto.com
ADELE M. EL-KHOURI
Adele.El-Khouri@mto.com
MUNGER, TOLLES & OLSON LLP
1117 F. Street, N.W., Seventh Floor
Washington, D.C. 20004
Telephone: (202) 220-1100
Facsimile: (202) 220-2300

Counsel for All Plaintiffs
Additional Co-Counsel for All Plaintiffs Listed on
Next Page

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Case 1:20-cv-01996-DLF Document 64 Filed 08/28/20 Page 23 of 23

Additional Co-Counsel for All Plaintiffs

BACARDI JACKSON WENDY LECKER
bacardi.jackson@splcenter.org WLecker@edlawcenter.org
(Admitted Pro Hac Vice) (Admitted Pro Hac Vice)
CHRISTINE BISCHOFF JESSICA LEVIN
christine.bischoff@splcenter.org JLevin@edlawcenter.org
(Admitted Pro Hac Vice) (Admitted Pro Hac Vice)
KATHERINE DUNN
katherine.dunn@splcenter.org EDUCATION LAW CENTER
(Admitted Pro Hac Vice) 60 Park Place, Suite 300
LINDSEY RUBINSTEIN Newark, New Jersey 07102
lindsey.rubinstein@splcenter.org Telephone: (973) 624-1815
(Admitted Pro Hac Vice) Facsimile: (973) 624-7339
SAM BOYD
sam.boyd@splcenter.org
(Admitted Pro Hac Vice)
MICHAEL TAFELSKI
michael.tafelski@splcenter.org
(Admitted Pro Hac Vice)

SOUTHERN POVERTY LAW CENTER
400 Washington Avenue
Montgomery, Alabama 36104
Telephone: (334) 315-0179
Facsimile: (334) 956-8481

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