Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 58 (August 31, 2020)

Summary

Plaintiff State of Washington's opposition to Defendants' motion for clarification regarding scope of preliminary injunction in State of Washington v. DeVos, No. 2:20-cv-01119-BJR, in the U.S. District Court for the Western District of Washington at Seattle, dated August 31, 2020 (Doc. 58). Washington argues that the Court's Order enjoined Defendants without a geographic limitation and that an injunction reaching beyond Washington's borders is within the Court's authority, citing 5 U.S.C. § 705. It states that, if the Court is concerned about the scope of the injunction, it should order expedited briefing on partial summary judgment on Count I. The conclusion asks the Court to deny the motion for clarification; the signature block shows s/ R. July Simpson.

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“Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 58 (August 31, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/response-to-motion-state-of-washington-v-devos-no-2-20-cv-01119-w-d-wa-816b277f07/, SHA-256 7d0c403a6d71f10e6bc27f1861edbf79c175ea61a6e793ec1252ff89ff575abb.

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Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 1 of 7

1 ROBERT W. FERGUSON
Attorney General
2
PAUL M. CRISALLI, WSBA #40681
3 BRIAN H. ROWE, Pro Hac Vice
R. JULY SIMPSON, WSBA #45869
4 JEFFREY T. SPRUNG, WSBA #23607
SPENCER W. COATES, WSBA #49683
5 Assistant Attorneys General
800 Fifth Avenue, Suite 2000
6 Seattle, WA 98104
(206) 464-7744
7
The Honorable Barbara J. Rothstein
8
UNITED STATES DISTRICT COURT
9 WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
10
STATE OF WASHINGTON, NO. 2:20-cv-01119-BJR
11
Plaintiff, PLAINTIFF STATE OF
12 WASHINGTON’S OPPOSITION TO
v. DEFENDANTS’ MOTION FOR
13 CLARIFICATION REGARDING
BETSY DeVOS, in her official capacity as SCOPE OF PRELIMINARY
14 Secretary of the United States Department of INJUNCTION
Education; and the UNITED STATES
15 DEPARTMENT OF EDUCATION, a federal
agency,
16
Defendants.
17

18 I. INTRODUCTION

19 Defendants contend the Court did not intend to enter an injunction that restrained them

20 from implementing their unlawful statutory interpretation beyond Washington’s border, but the

21 language of the Court’s Order states otherwise. The Order enjoined Defendants from

22 implementing or enforcing their erroneous statutory limitation, without a geographic limitation.

23 Dkt. #54 at p. 21. The Court’s injunction was within its authority. If the Court is concerned about

24 the scope of the injunction, Washington anticipates requesting it to order expedited briefing on

25 partial summary judgment on Count I alleging the Interim Final Rule is contrary to law, which

26 involves exclusively legal issues.

PLAINTIFF STATE OF WASHINGTON’S 1 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 2 of 7

1 II. ARGUMENT

2 A. An Injunction Reaching Beyond Washington’s Borders Is Within the Court’s
Authority
3
The Administrative Procedure Act (APA) provides express authority for the interim
4
remedy this Court ordered. Specifically, 5 U.S.C. § 705 provides that “[o]n such conditions as
5
may be required and to the extent necessary to prevent irreparable injury,” a court “may issue all
6
necessary and appropriate process to postpone the effective date of an agency action or to
7
preserve status or rights pending conclusion of the review proceedings.” By authorizing the court
8
to suspend “the effective date” of an agency’s action, this express statutory remedy applies to a
9
rule as a whole rather than to particular parties or locations. See Mexichem Specialty Resins, Inc.
10
v. E.P.A., 787 F.3d 544, 562 (D.C. Cir. 2015) (Kavanaugh, J., dissenting in part) (§ 705
11
“authorizes courts to stay agency rules pending judicial review”) (emphasis omitted). The Court
12
was within its authority under the APA to “postpone the effective date” of Defendants’ unlawful
13
statutory interpretation pending resolution of the merits.
14
Even apart from the Court’s remedial authority under the APA, the Court properly
15
exercised its discretion in unique case with “potentially tragic consequences” (Dkt. #54 at p. 20),
16
to suspend the Interim Final Rule pending final judgment. “Crafting a preliminary injunction is
17
an exercise of discretion and judgment, often dependent as much on the equities of a given case
18
as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project (IRAP),
19
137 S. Ct. 2080, 2087 (2017). In evaluating a request for an injunction, a court must consider
20
“the overall public interest.” Id. And when weighing the equities the court will consider
21
“preventable human suffering,” particularly when it “affect[s] individuals possess[ing] limited
22
resources . . . .” Golden Gate Rest. Ass’n v. City & County of San Francisco, 512 F.3d 1112,
23
1126 (9th Cir. 2008).
24
Here, the Court concluded the Department lacked statutory authority—“either specific
25
or general—to promulgate rules” and ignored a “statute [that] could hardly be less ambiguous.”
26
PLAINTIFF STATE OF WASHINGTON’S 2 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 3 of 7

1 Dkt. #54 at pp. 12, 13. The Court found the Department’s primary argument “generously put, a

2 stretch; its adoption would render all but the most laconic Congressional directives ambiguous.”

3 Id. at p. 15. In these circumstances, precedent exists for the suspension of the challenged agency

4 action pending resolution of the merits. See, e.g., Am. Fed’n of Labor & Cong. of Indus. Orgs.

5 v. Chao, 297 F. Supp. 2d 155, 156–57 (D.D.C. 2003) (“A one-year postponement of the effective

6 date of the new Rule will cause no harm to either the Department of Labor or to union

7 members.”).

8 Further, the harmful impact and “preventable human suffering” of the Department’s

9 invalid statutory interpretation does not stop at Washington’s borders. See, e.g., Dkt. #54 at p. 8

10 (“In Washington, as in many states, not all Title I eligible schools choose to participate in Title

11 I.”) (emphasis added); id. at p. 19 (“The nature of this pandemic is that its consequences have

12 fallen most heavily on the nation’s most vulnerable populations, including its neediest

13 students.”) (emphasis added).

14 Ordering relief beyond Washington’s borders is equitable and necessary to provide

15 Washington complete relief. The purpose of the CARES Act appropriation at issue is to provide

16 funding to the nation’s most vulnerable schools to respond to and prevent further spread of

17 COVID-19 throughout the United States. Because of the highly contagious nature of the virus—

18 exacerbated by the facts that the virus can be transmitted by asymptomatic carriers and residents

19 of the United States may freely travel between states—there is no way to limit steps taken to

20 address COVID-19 to just one state. Limiting relief to Washington would partially protect

21 Washington schools, but it would leave students and families in neighboring states without the

22 protections Congress intended, and these individuals could and would freely travel across

23 Washington’s borders. Ordering the Department to suspend enforcement of its erroneous

24 statutory interpretation beyond Washington’s border is necessary to protect the most vulnerable

25 Washington students from the spread of COVID-19. See City & County of San Francisco v.

26 Barr, 965 F.3d 753, 765 (9th Cir. 2020) (“appropriate inquiry” is “whether Plaintiffs themselves
PLAINTIFF STATE OF WASHINGTON’S 3 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 4 of 7

1 will continue to suffer their alleged injuries if [the federal government] were enjoined from

2 enforcing the Challenged Conditions only in [the Plaintiffs’ State].”).

3 Nor does Article III limit the Court from halting Defendants’ implementation of their

4 unlawful statutory interpretation during the pendency of this suit. See Dkt. #55 at p. 4. Contrary

5 to Defendants’ implication, Article III courts, including the Supreme Court, “have issued

6 injunctions that extend beyond just the plaintiff for well over a century.” Mila Sohoni, The Lost

7 History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 924, 935–54 (2020). Most

8 recently, in Trump v. International Refugee Assistance Project, involving President Trump’s

9 second Executive Order suspending the entry of foreign nationals from certain specified

10 countries, the Court narrowed a nationwide injunction by limiting it to foreign nationals with a

11 bona fide relationship with the United States, but left in place nationwide injunctions with respect

12 to the plaintiff “and those similarly situated.” 137 S. Ct. at 2087. Defendants’ contention that

13 nationwide injunctions protecting parties other than the plaintiff violate Article III cannot be

14 squared with IRAP.

15 B. If the Court Is Concerned About the Scope of the Injunction, It Should Order
Expedited Summary Judgment Briefing
16
Washington recognizes preliminary injunctions that apply beyond just the plaintiff
17
recently have been disputed by the federal government. In California v. Azar, 911 F.3d 558 (9th
18
Cir. 2018) (not cited by Defendants), the Ninth Circuit recognized there is “no bar” to nationwide
19
preliminary injunctive relief, but it reversed a nationwide injunction of an IFR as overbroad. In
20
that case, however, the asserted harms were exclusively economic, whereas here the harm has
21
“potentially tragic consequences” to health and life. See Dkt. # 54 at p. 20. Moreover, in a case
22
that preceded the current Administration, the Ninth Circuit reversed a district court’s state-wide
23
injunction as overbroad. Stormans, Inc. v. Selecky, 586 F. 3d 1109 (9th Cir. 2009). In Storman’s
24
(also not cited by Defendants), the district court had enjoined the Washington Pharmacy Board’s
25
rules prohibiting a pharmacist from refusing to dispense pharmaceuticals, including Plan B,
26
PLAINTIFF STATE OF WASHINGTON’S 4 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 5 of 7

1 based on religious, moral, or other objections. Storman’s is distinguishable because, unlike here,

2 the injunction was broader than needed to address the claimed First Amendment right: it allowed

3 all pharmacists to refuse to dispense Plan B for any reason including “personal distaste” or

4 discriminatory practices. Id. at 1140. And more importantly, the Court held that granting the

5 overbroad injunction could result in “otherwise avoidable human suffering,” while limiting the

6 injunction to the plaintiffs would mitigate much of the harm that others “in the state of

7 Washington would otherwise face under an injunction that allows any and all pharmacies and

8 pharmacists to refuse to dispense Plan B for any reason.” Id. at 1140–41. Thus, that court said

9 that “[t]he district court should have limited the injunction to the named Appellees, as was

10 requested by the Appellees themselves in their initial motion for a preliminary injunction[.]”

11 Id. at 1140.

12 If the Court has concern about the propriety of ordering preliminary relief that extends

13 beyond Washington’s border, Washington will request the Court to order expedited briefing on

14 a motion for partial summary judgment on its claim that the IFR is contrary to law, Dkt. #1 at

15 p. 27 (Count I). This claim involves exclusively legal issues and can be resolved even before

16 Defendants produce the administrative record. Washington would anticipate filing its motion for

17 partial summary judgment one week after the Court’s order, with Defendants filing their

18 opposition two weeks thereafter, and Washington filing its reply one week later.

19 III. CONCLUSION

20 The Court should deny Defendants’ motion for clarification.

21 DATED this 31st day of August 2020.

22 ROBERT W. FERGUSON
Attorney General
23
s/ R. July Simpson
24 PAUL M. CRISALLI, WSBA #40681
BRIAN H. ROWE, Pro Hac Vice
25 R. JULY SIMPSON, WSBA #45869
JEFFREY T. SPRUNG, WSBA #23607
26 SPENCER W. COATES, WSBA #49683
PLAINTIFF STATE OF WASHINGTON’S 5 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 6 of 7

1 Assistant Attorneys General
800 Fifth Avenue, Suite 2000
2 Seattle, WA 98104-3188
(206) 464-744
3 paul.crisalli@atg.wa.gov
brian.rowe@atg.wa.gov
4 july.simpson@atg.wa.gov
jeff.sprung@atg.wa.gov
5 spencer.coates@atg.wa.gov
Attorneys for Plaintiff State of Washington
6

26
PLAINTIFF STATE OF WASHINGTON’S 6 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR
Case 2:20-cv-01119-BJR Document 58 Filed 08/31/20 Page 7 of 7

1 DECLARATION OF SERVICE

2 I hereby declare that on this day I caused the foregoing document to be electronically

3 filed with the Clerk of the Court using the Court’s CM/ECF System which will serve a copy of

4 this document upon all counsel of record.
DATED this 31st day of August 2020, at Tacoma, Washington.
5

6
s/ R. July Simpson
7 R. JULY SIMPSON, WSBA #45869
Assistant Attorney General
8

26
PLAINTIFF STATE OF WASHINGTON’S 7 ATTORNEY GENERAL OF WASHINGTON
Complex Litigation Division
OPPOSITION TO DEFENDANTS’ 800 5th Avenue, Suite 2000
MOTION FOR CLARIFICATION Seattle, WA 98104-3188
(206) 464-7744
REGARDING SCOPE OF PRELIMINARY
INJUNCTION
NO. 2:20-cv-01119-BJR

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