Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 68 (November 16, 2020)

Summary

Defendants Betsy DeVos and the U.S. Department of Education oppose the State of Washington's motion to reconsider in Case No. 2:20-cv-1119-MLP, in the United States District Court for the Western District of Washington. The opposition says the Interim Final Rule (IFR) challenged in the case was "effectively enjoined" and vacated and remanded to the agency by the court in NAACP v. DeVos, No. 20-cv-1996 (D.D.C.), so no controversy remains and the case is moot. It says counsel told Plaintiff's counsel in writing on October 2, 2020 of the Acting Solicitor General's decision not to appeal, and that the motion does not cite Federal Rule of Civil Procedure 59 or 60. The filing is dated November 16, 2020, and carries the signature /s/ Kate Talmor.

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“Response to Motion, State of Washington v. DeVos, No. 2:20-cv-01119 (W.D. Wash.), Doc. 68 (November 16, 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-f65cf2a103/, SHA-256 f10f318c4d720e3234497cb0c7a3fd37be92a2675885381f227872baa89dd169.

Full text

Case 2:20-cv-01119-BJR Document 68 Filed 11/16/20 Page 1 of 4

JEFFREY B. CLARK
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Acting Assistant Attorney General
2 JOHN COGHLAN
Deputy Assistant Attorney General
3 JENNIFER RICKETTS
Director, Federal Programs Branch
4
KATE TALMOR
5 Trial Attorney

6 Attorneys for Defendants

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

9
10 STATE OF WASHINGTON, Case No. 2:20-cv-1119-MLP
11
Plaintiff, DEFENDANTS’ OPPOSITION TO
12 v. PLAINTIFF’S MOTION TO
RECONSIDER
13 BETSY DEVOS, and
14 U.S. DEPARTMENT OF EDUCATION,

15 Defendants.
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECONSIDER
Case No. 2:20-cv-1119-MLP
Case 2:20-cv-01119-BJR Document 68 Filed 11/16/20 Page 2 of 4

1 Defendants respectfully submit this opposition to Plaintiff’s Motion to Reconsider, see
2 ECF No. 66, as ordered by this Court’s November 10, 2020 minute order.
3 Plaintiff’s Motion is groundless and should be denied. As this Court recognized in its
4 October 26, 2020 minute order dismissing this case, the Interim Final Rule (IFR) challenged in
5 this litigation was “effectively enjoined,” permanently, and vacated and remanded to the agency
6 by the court in NAACP v. DeVos, No. 20-cv-1996 (D.D.C.). That decision accords Plaintiff here
7 not only all of the relief sought in its Complaint, but all of the relief to which it possibly could be
8 entitled. There remains no controversy between the parties, and this case is moot.
9 Plaintiff acknowledges that the NAACP court vacated the very rule at issue in this case. It
10 nonetheless asks the Court to reconsider its dismissal of the case and enter judgment enjoining
11 the now-vacated rule based on pure speculation that Defendants will “fail to follow the terms of
12 the District of Columbia’s decision,” and—were that to happen—Plaintiff would have to engage
13 in the burden of filing a new suit. Mot. at 3. Filing a lawsuit is not particularly burdensome, of
14 course. More importantly, Plaintiff’s fear that the Department will not respect the order of the
15 NAACP court is entirely unfounded and turns the presumption of regularity by government
16 officials and agencies on its head. It purports to rest on the Department’s October 2020 guidance,
17 which Plaintiff claims included “similar, if not identical provisions as in the April Guidance”
18 challenged in this case. Mot. at 2. What Plaintiff fails to acknowledge, however, is that the
19 October Guidance explicitly confirms the result of the NAACP court’s vacatur of the IFR and
20 what Plaintiff sought in this case—that “the proportional share for a CARES Act program must
21 be determined in accordance with section 1117(a)(4)(A) of the ESEA.” See October Guidance at
22 Q.7, available at https://oese.ed.gov/files/2020/10/Providing-Equitable-Services-under-the-
23 CARES-Act-Programs-Update-10-9-2020.pdf. In addition, the Department stipulated in the
24 Northern District of California case challenging the IFR that it would calculate the proportional-
25 share allocation in accordance with Section 1117(a)(4) of the ESEA. See ECF No. 91, Order and
26 Judgment Granting a Permanent Injunction and Closing the Case, No. 20-cv-4478-JD (N.D.
27 Cal.).
28 Plaintiff also seems to suggest that Defendants failed to notify it that they would not
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECONSIDER
Case No. 2:20-cv-1119-MLP

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Case 2:20-cv-01119-BJR Document 68 Filed 11/16/20 Page 3 of 4

1 appeal the NAACP court’s decision. See Mot. at 2. On the contrary, undersigned counsel
2 conveyed in writing to Plaintiff’s counsel on October 2, 2020, the Acting Solicitor General’s
3 decision not to appeal either this Court’s preliminary-injunction order or the NAACP court’s
4 vacatur of the IFR. See Exh. A (proposing the parties jointly move to dismiss this case as moot).
5 In any event, Plaintiff admits that “Defendants ultimately publicly indicated that they would not
6 appeal,” Mot. at 2, and do not claim that the government has reversed this position, so it is
7 unclear how any of this suggests that the Department will not respect the NAACP court’s
8 decision.
9 That Plaintiff’s motion for reconsideration lacks any basis is further demonstrated by its
10 failure even to cite Federal Rule of Civil Procedure 59 or 60. Nowhere does Plaintiff attempt to
11 show that the Court’s dismissal of this (moot) case was tainted by, inter alia, “mistake,
12 inadvertence, surprise, or excusable neglect”; “newly discovered evidence”; or “any other reason
13 that justified relief.” See FRCP 60(b). And the only legal authority (outside these related cases)
14 relied upon by Plaintiff in its motion concerned the propriety of overlapping preliminary
15 injunctions in different circuits—not, as here, a request to modify a judgment in a closed case
16 that has been inarguably mooted by final judgment in another court. See Mot. at 3 (citing
17 California v. Azar, 911 F.3d 558, 583-84 (9th Cir. 2018), cert denied sub nom. Little Sisters of
18 the Poor Jeanne Jugan Residence v. California, 139 S. Ct. 2716 (2019)).
19 For these reasons, Defendants respectfully urge this Court to deny Plaintiff’s motion.
20 DATED: November 16, 2020 Respectfully submitted,
21 JEFFREY B. CLARK
22 Acting Assistant Attorney General

23 JOHN COGHLAN
Deputy Assistant Attorney General
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25 JENNIFER RICKETTS
Director, Federal Programs Branch
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/s/ Kate Talmor
27 KATE TALMOR
28 (Member, Maryland Bar)
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECONSIDER
Case No. 2:20-cv-1119-MLP

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Case 2:20-cv-01119-BJR Document 68 Filed 11/16/20 Page 4 of 4

Trial Attorney
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U.S. Department of Justice
2 Civil Division, Federal Programs Branch
1100 L Street, N.W.
3 Washington, D.C. 20005
(202) 305-5267
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kate.talmor@usdoj.gov
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Attorneys for Defendants
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO RECONSIDER
Case No. 2:20-cv-1119-MLP

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