Reply to Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 59 (September 2, 2020)

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Defendants' reply in support of their motion for clarification regarding scope of preliminary injunction in State of Washington v. DeVos, Case No. 2:20-cv-1119-BJR, in the U.S. District Court for the Western District of Washington, dated September 2, 2020 (Doc. 59). Defendants argue that the Court's August 21, 2020 preliminary injunction should not have nationwide effect, that the State did not move for a stay under 5 U.S.C. § 705, and that the State neither pled, briefed, nor submitted evidence in support of a nationwide injunction. The conclusion asks the Court to clarify that its August 21, 2020 Order provides preliminary relief from the IFR to the State of Washington, exclusively. The signature block lists Counsel, Civil Division, U.S. Department of Justice, with /s/ before the signer name.

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“Reply to Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 59 (September 2, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/reply-to-response-to-motion-state-of-washington-v-devos-no-2-20-cv-011-f84643c970/, SHA-256 9f82bdb93e8110c44b01898ab26c777d7e3e36563a382568b701928295656c59.

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Case 2:20-cv-01119-BJR Document 59 Filed 09/02/20 Page 1 of 5

ETHAN P. DAVIS
1
Acting Assistant Attorney General
2 DAVID M. MORRELL
Deputy Assistant Attorney General
3 JENNIFER RICKETTS
Director, Federal Programs Branch
4
WILLIAM K. LANE III
5 Counsel

6 Attorneys for Defendants

7 IN THE UNITED STATES DISTRICT COURT
8 FOR THE WESTERN DISTRICT OF WASHINGTON

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STATE OF WASHINGTON,
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11 Plaintiff, Case No. 2:20-cv-1119-BJR
v.
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BETSY DEVOS, in her official capacity as DEFENDANTS’ REPLY IN SUPPORT OF
13 Secretary of the United States Department of THEIR MOTION FOR CLARIFICATION
14 Education; and the UNITED STATES REGARDING SCOPE OF PRELIMINARY
DEPARTMENT OF EDUCATION, INJUNCTION
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Defendants.
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DEFENDANTS’ REPLY IN SUPPORT OF THEIR
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MOTION FOR CLARIFICATION
20 REGARDING SCOPE OF PRELIMINARY INJUNCTION

21 Defendants established in their opening motion for clarification that the Court’s August
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21, 2020 preliminary injunction should not have nationwide effect because the Court made no
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determination that the State needed nationwide relief to redress its injuries, nor was there any
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25 evidence in the record about harm beyond Washington’s borders. Defs.’ Mot. for Clarification

26 Regarding Scope of Preliminary Injunction, ECF No. 55, at 2–4 (“Defs.’ Mot.”). The motion
27 relied upon controlling Ninth Circuit authority, the most recent being City & County of San
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DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLARIFICATION
Case No. 2:20-cv-1119-BJR

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Case 2:20-cv-01119-BJR Document 59 Filed 09/02/20 Page 2 of 5

Francisco v. Barr, 965 F.3d 753, 765–66 (2020). Id. Since the motion was filed, a district court
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2 in related litigation in the Northern District of California enjoined application of the equitable-

3 services rule against only plaintiffs in that suit. State of Michigan v. DeVos, No. 3:20-cv-04478-
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JD, ECF No. 82 (N.D. Cal. Aug. 26, 2020). See also Defs.’ Mot. at 3 n.2 (noting other cases
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challenging rule).
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7 In opposing the motion, the State attempts to rely on 5 U.S.C. § 705 as authority for a

8 nationwide injunction. The first problem with this argument is that the State did not move for a
9 stay of the effective date of the rule under section 705. Instead, it moved for a preliminary
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injunction pursuant to Federal Rule of Civil Procedure 65. Pl.’s Proposed Order in supp. of PI
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Mot. at 2, ECF No. 8-1. There is no mention of 5 U.S.C. § 705 in the State’s PI motion.
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13 The second problem with Plaintiff’s argument is that the text of section 705 provides that

14 a court may postpone the effective date of an agency action only “to the extent necessary to
15 prevent irreparable injury.” 5 U.S.C. § 705. That command is in line with California v. Azar,
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another APA case, which held—without mentioning section 705—that “scope of the remedy
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must be no broader and no narrower than necessary to redress the injury shown by” plaintiffs.
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19 911 F.3d 558, 584 (9th Cir. 2018); see also City & Cnty. of San Francisco, 965 F.3d at 765.

20 A third problem is that section 705 cannot negate the Article III requirement that, as
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discussed in the opening motion, “[f]or all relief sought, there must be a litigant with standing.”
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Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (citation omitted); see also
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Gill v. Whitford, 138 S. Ct. 1916, 1930, 1933 (2018) (“The Court’s constitutionally prescribed
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25 role is to vindicate the individual rights of the people appearing before it.”). Plaintiff’s reliance

26 on Trump v. International Refugee Assistance Project (“IRAP”), 137 S. Ct. 2080 (2017), does
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not overcome this bedrock principle. The question is not, as the State asserts, whether
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DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLARIFICATION
Case No. 2:20-cv-1119-BJR

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Case 2:20-cv-01119-BJR Document 59 Filed 09/02/20 Page 3 of 5

“nationwide injunctions [can] protect[] parties other than the plaintiff,” see Opp. at 4, but instead
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2 whether any injunction should grant relief beyond the harm demonstrated by a plaintiff. For

3 instance, in IRAP the Supreme Court narrowed injunctions to prevent enforcement of an
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executive order against individuals with a bona fide relationship to the United States, while
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staying their application as to individuals without such a relationship. 137 S. Ct. at 2087. In so
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7 doing, the Court emphasized that “[c]rafting a preliminary injunction is an exercise of discretion

8 and judgment,” id., and tailored the injunctions to accord with the harms demonstrated by
9 plaintiffs in those suits. That same reasoning applies here.
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Beyond Plaintiff’s belated and unavailing reliance on section 705, it fails to grapple
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meaningfully with Defendants’ arguments for a properly tailored injunction. First, although the
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13 State focuses on the absence of limiting language in the order’s concluding paragraph, the State

14 ignores the fact that the Court’s findings of harm focused exclusively on impacts to
15 Washington—not to the nation as a whole or even to neighboring states. See Order Granting
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Prelim. Inj. (“Order”), ECF No. 54, at 18–20. Plaintiff’s reading of the injunction would create a
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serious mismatch between the irreparable-harm arguments credited by the Court and the remedy
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19 it ordered as a result.

20 Second, the State ignores the fact that it neither pled, briefed, nor submitted evidence in
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support of a nationwide injunction. It should not now be heard to request relief going
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substantially beyond that which it endeavored to obtain.
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And third, its half-hearted attempt to argue that Washington would be harmed by
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25 enforcement of the interim final rule (“IFR”) in other states is unsupported by either evidence or

26 common sense. Plaintiff contends that suspension of the IFR “beyond Washington’s border is
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necessary to protect the most vulnerable Washington students from the spread of COVID-19.”
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DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLARIFICATION
Case No. 2:20-cv-1119-BJR

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Case 2:20-cv-01119-BJR Document 59 Filed 09/02/20 Page 4 of 5

See Pl.’s Opp. to Mot. for Clar., ECF No. 58, at 3. Plaintiff’s rationale justifying that argument
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2 makes little sense. According to Plaintiff, limiting the injunction to the State of Washington

3 “would leave students and families in neighboring states without the protections Congress
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intended, and these individuals could and would freely travel across Washington’s borders.” Id.
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But Plaintiff fails to explain why the IFR would result in increased cases of coronavirus in
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7 neighboring states, let alone why infected individuals would travel to Washington and infect

8 students enrolled in Washington schools. Plaintiffs have certainly offered no evidence to support
9 such a theory. Simply put, Washington has failed to present a cogent, non-speculative argument
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that decreased public-school funding in other states will impact coronavirus infection rates at
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all—much less within Washington’s borders—and it likewise has submitted no evidence that it
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13 will suffer irreparable harm should the IFR take effect in neighboring states.

14 CONCLUSION
15 For these reasons and the reasons set forth in Defendants’ motion, Defendants
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respectfully request that the Court clarify that its August 21, 2020 Order provides preliminary
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relief from the IFR to the State of Washington, exclusively.
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19 DATED: September 2, 2020 Respectfully submitted,

20 ETHAN P. DAVIS
Acting Assistant Attorney General
21
DAVID M. MORRELL
22
Deputy Assistant Attorney General
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JENNIFER D. RICKETTS
24 Director, Federal Programs Branch
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/s/ William K. Lane III
26 WILLIAM K. LANE III
(D.C. Bar #1034955)
27 Counsel, Civil Division
28 U.S. Department of Justice

DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLARIFICATION
Case No. 2:20-cv-1119-BJR

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Case 2:20-cv-01119-BJR Document 59 Filed 09/02/20 Page 5 of 5

950 Pennsylvania Ave., N.W.
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Washington, D.C. 20530
2 (202) 305-7920
william.lane2@usdoj.gov
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Attorneys for Defendants
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DEFENDANTS’ REPLY IN SUPPORT OF THEIR MOTION FOR CLARIFICATION
Case No. 2:20-cv-1119-BJR

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