Status Report, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 39 (August 13, 2020)

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Joint Status Report, Document 39 in National Association for the Advancement of Colored People (NAACP) et al. v. DeVos, Civil Case No. 1:20-cv-01996 (DLF), in the U.S. District Court for the District of Columbia, filed August 13, 2020. It responds to the Court's Minute Order dated August 12, 2020, and states that the parties could not agree on a proposal to consolidate Plaintiffs' motion for a preliminary injunction with an expedited ruling on the merits. Plaintiffs propose converting the motion to one for partial summary judgment on Counts One through Four of the First Amended Complaint, with Defendants' opposition on August 24, 2020 and Plaintiffs' reply on August 31, 2020. Defendants state that they are prepared to conclude briefing on the preliminary injunction motion while the agency reviews approximately 13,000 comments on the Interim Final Rule.

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“Status Report, NAACP et al. v. DeVos, No. 1:20-cv-01996 (D.D.C.), Doc. 39 (August 13, 2020).” Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/status-report-naacp-et-al-v-devos-no-1-20-cv-01996-d-d-c-doc-39-august-a13c245779/, SHA-256 24fab301d5d5d5bc352436885d1f1d41b4a677abfd3afb249abca80d3bff4620.

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Case 1:20-cv-01996-DLF Document 39 Filed 08/13/20 Page 1 of 6

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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

Plaintiffs National Association for the Advancement of Colored People (“NAACP”) et

al., and Defendants Elisabeth DeVos et al., by and through undersigned counsel, respectfully

submit this joint status report pursuant to this Court’s Minute Order dated August 12, 2020.

The parties have met and conferred but are not able to agree on a proposal to consolidate

the Plaintiffs’ motion for a preliminary injunction with an expedited ruling on the merits. The

parties have set forth their positions below.

Plaintiffs’ Position
Plaintiffs proposed the following to Defendants:

 Conversion of Plaintiffs’ pending motion for a preliminary injunction to a motion for

partial summary judgment on Counts One through Four of the First Amended

Complaint (Doc. No. 35), with the following schedule:

♦ Defendants’ opposition; August 24, 2020

♦ Plaintiffs’ reply; August 31, 2020

♦ Hearing: the week of August 31, 2020, or as soon as possible thereafter
 No submission of the administrative record for the partial summary judgment motion

as it is unnecessary to resolve the merits of these claims.

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Case 1:20-cv-01996-DLF Document 39 Filed 08/13/20 Page 2 of 6

 Within 14 days of the Court’s resolution of the partial summary judgment motion, the

parties will submit a proposed schedule for the resolution of any remaining issues.

After some back and forth, Defendants, ultimately, did not agree.

Plaintiffs submit this plan is the most expeditious and efficient. First, it is extremely

important that the issues presented by Counts One through Four of the First Amended Complaint

are resolved quickly so that school districts across the country have clear direction. Defendants

have expressly acknowledged that time is of the essence. Specifically, in issuing an Interim

Final Rule without notice-and-comment proceedings, Defendant the United States Department of

Education stated that “[t]he CARES Act programs were enacted to address the immediate effects

of COVID-19,” and “time is of the essence” because “of the current national emergency, its

disruption on education in both public and non-public schools, and the immediate need for

certainty regarding applicable requirements.” 85 Fed. Reg. 39,483–84 (July 1, 2020). Plaintiffs’

proposal allows for the most expeditious means of establishing certainty for the country’s

schools.

Second, a partial summary judgment motion is appropriate at this stage. Counts One

through Four of the First Amended Complaint present pure, dispositive questions of law. Counts

that “raise pure legal questions regarding the scope of the Secretary’s statutory authority,” Am.

Hosp. Ass’n v. Azar, 348 F. Supp. 3d 62, 84 (D.D.C. 2018), rev’d on other grounds, No. 19-

5048, 2020 WL 4378021 (D.C. Cir. Jul. 31, 2020), can be decided on the merits through the

conversion of a preliminary injunction to a summary judgment motion. See March v. Life v.

Burwell, 128 F. Supp. 3d 116, 124 (D.D.C. 2015) (noting that conversion under Rule 65(a)(2) is

appropriate where “reliance on the record is unnecessary”). Such conversion can be done

irrespective of Defendants’ consent thereto. See, e.g., Am. Fed. of Gov’t Employees v. Rivlin,

Civ. A. No. 95–2115 (EGS), 1995 WL 697236, at *5 (D.D.C. Nov. 17, 1995) (granting Rule

65(a)(2) conversion of motion for preliminary injunction to motion for summary judgment “over

defendants’ objection”).

Third, Plaintiffs’ proposal is the most efficient manner for addressing the issues. Instead

of utilizing the Court’s and the parties’ time and resources to brief and decide both a preliminary

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Case 1:20-cv-01996-DLF Document 39 Filed 08/13/20 Page 3 of 6

injunction motion, and then a summary judgment motion, where the same issues are raised and

argued, Plaintiffs’ proposal allows for the Court to address the legal issues only once.

For all of the foregoing reasons, Plaintiffs respectfully ask the Court to adopt Plaintiffs’

proposal as set forth above.

The Defendants’ Position
Defendants do not believe that proceeding on a motion for partial summary judgment

presents the most efficient path forward. Rather, Defendants are prepared to conclude briefing

on Plaintiffs’ motion for preliminary injunction, while the agency continues to review and

consider approximately 13,000 comments on the Interim Final Rule and prepares to issue a final

rule. The prompt issuance of a final rule would appear to be in the public interest.

For this reason, Defendants also believe this may be the unusual case for which expedited

summary judgment proceedings may not result in the most efficient resolution of disputed

issues. Because Defendants plan to issue a final rule in the near future, preparing an

administrative record and briefing fully the claims brought by Plaintiffs may well be overtaken

by the final rule. In addition, the personnel who would be responsible for compiling the

administrative record for the Interim Final Rule are the same personnel currently reviewing the

thousands of comments and helping prepare a final rule in response. For this reason, Defendants

respectfully urge the Court not to set an expedited briefing schedule for full summary judgment

at this time.

If the Court should order expedited summary judgment briefing, Defendants would

request three (3) weeks in which to prepare and submit the administrative record, followed in

two (2) weeks by the parties filing cross-motions for summary judgment, and filing opposition

briefs two (2) weeks thereafter.

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Case 1:20-cv-01996-DLF Document 39 Filed 08/13/20 Page 4 of 6

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)

WILLIAM K. LANE, III /s/ Tamerlin J. Godley
(D.C. Bar No. 1034955)
ETHAN P. DAVIS
Acting Assistant Attorney General
DAVID MORRELL TAMERLIN J. GODLEY
Deputy Assistant Attorney General Tamerlin.Godley@mto.com
JENNIFER RICKETTS JESSICA REICH BARIL
Director, Federal Programs Branch Jessica.Baril@mto.com
DAVID P. THORESON
/s/ William K. Lane III David.Thoreson@mto.com
WILLIAM K. LANE III
Counsel MUNGER, TOLLES & OLSON LLP
Civil Division 350 South Grand Avenue, Fiftieth Floor
U.S. Department of Justice Los Angeles, California, 90017
950 Pennsylvania Ave., N.W. Telephone: (213) 683-9100
Washington, D.C. 20530 Facsimile: (213) 687-3702
(202) 305-7920
william.lane2@usdoj.gov JONATHAN KRAVIS
Jonathan.Kravis@mto.com
Attorneys for Defendants
ADELE M. EL-KHOURI
Adele.El-Khouri@mto.com
MUNGER, TOLLES & OLSON LLP
1117 F. Street, N.W., Seventh Floor
Washington, D.C. 20004–1357
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 39 Filed 08/13/20 Page 5 of 6

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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Case 1:20-cv-01996-DLF Document 39 Filed 08/13/20 Page 6 of 6

CERTIFICATE OF SERVICE
I hereby certify that on August 13, 2020, a true and correct copy of the foregoing JOINT

STATUS REPORT was served upon all counsel of record via the Court’s CM/ECF electronic

filing system.

/s/ Tamerlin J. Godley
Tamerlin J. Godley

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