Stipulation, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 90 (November 6, 2020)
Summary
Plaintiffs including the State of Michigan and the State of California stipulate with Defendants, Secretary DeVos and the Department of Education, to entry of a permanent injunction and closing of the case. The stipulation recites that the Court granted a preliminary injunction on August 26, 2020, against the interim final rule on equitable services to students and teachers in non-public schools and a related April 30, 2020 guidance document. The injunction would bar enforcing the proportional-share provisions in that rule and guidance, and any penalty or adverse action for actions taken in reliance on them before the preliminary injunction order. Defendants also waive any rights to seek reconsideration of or appeal either injunction, and the stipulation is contingent on the Court retaining jurisdiction to enforce.
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Cite this document
“Stipulation, State of Michigan et al. v. DeVos, No. 3:20-cv-04478 (N.D. Cal.), Doc. 90 (November 6, 2020).”
Original at storage.courtlistener.com. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/stipulation-state-of-michigan-et-al-v-devos-no-3-20-cv-04478-n-d-cal-d-3e0db167ec/
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Case 3:20-cv-04478-JD Document 90 Filed 11/06/20 Page 1 of 5
1 XAVIER BECERRA DANA NESSEL
Attorney General of California Attorney General of Michigan
2 MICHAEL NEWMAN FADWA A. HAMMOUD
Senior Assistant Attorney General Solicitor General
3 SARAH E. BELTON TONI L. HARRIS*
Supervising Deputy Attorney General NEIL GIOVANATTI*
4 REBEKAH A. FRETZ Assistant Attorneys General
JAMES F. ZAHRADKA II P.O. Box 30758
5 GARRETT M. LINDSEY (SBN 293456) Lansing, MI 48909
Deputy Attorneys General Telephone: (517) 335-7603
6 300 South Spring Street, Suite 1702 E-mail: GiovanattiN@michigan.gov
Los Angeles, CA 90013 Attorneys for Plaintiff State of Michigan
7 Telephone: (213) 269-6402 *Appearing Pro Hac Vice
E-mail: Garrett.Lindsey@doj.ca.gov
8 Attorneys for Plaintiff State of California
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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13 STATE OF MICHIGAN, STATE OF Case No. 3:20-cv-04478-JD
CALIFORNIA, et al.,
14 STIPULATION TO ENTER AN ORDER
Plaintiffs, AND JUDGMENT GRANTING A
15 PERMANENT INJUNCTION AND
v. CLOSING THE CASE
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Date:
17 ELISABETH D. DEVOS, in her official Time:
capacity as the United States Secretary of Judge: Hon. James Donato
18 Education, and UNITED STATES Trial Date: None set
DEPARTMENT OF EDUCATION, Action Filed: July 7, 2020
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Defendants.
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Stipulation to Enter an Order and Judgment (20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 90 Filed 11/06/20 Page 2 of 5
1 Plaintiffs State of Michigan, State of California, District of Columbia, State of Hawaii,
2 State of Maine, State of Maryland, State of New Mexico, Commonwealth of Pennsylvania, State
3 of Wisconsin, the Board of Education for the City School District of the City of New York,
4 Board of Education for the City of Chicago, Cleveland Municipal School District Board of
5 Education, and San Francisco Unified School District brought suit against Defendants Elisabeth
6 D. DeVos, in her official capacity as the United States Secretary of Education, and the United
7 States Department of Education (Department) alleging, among other contentions, that
8 Defendants violated the Administrative Procedure Act by acting in excess of statutory authority,
9 5 U.S.C. § 706(2)(C), and/or not in accordance with law, 5 U.S.C. § 706(2)(A), by promulgating
10 the interim final rule “CARES Act Programs; Equitable Services to Students and Teachers in
11 Non-Public Schools,” 85 Fed. Reg. 39479 (July 1, 2020) (Interim Final Rule), and by issuing a
12 related guidance document on April 30, 2020 (Guidance).
13 Plaintiffs subsequently sought a preliminary injunction of enforcement of the Interim Final
14 Rule and the Guidance. On August 26, 2020, this Court granted a preliminary injunction
15 prohibiting Defendants from implementing or enforcing against Plaintiffs the Interim Final Rule
16 and the Guidance. That injunction remains in place pending further order of the Court.
17 On September 25, 2020, Secretary DeVos issued a letter stating that the Department would
18 “enforce the law as the courts have opined” and “will not appeal the [courts’] rulings” in this
19 case and in other cases filed throughout the country challenging the Guidance and the Interim
20 Final Rule.1
21 On October 9, 2020, the Department issued a guidance document replacing the Guidance.
22 This document acknowledges that this Court and two other courts “issued decisions conclud[ing]
23 that an LEA must determine the proportional share available to provide equitable services to
24 non-public school students and teachers in accordance with section 1117(a)(4)(A) of the
25 Elementary and Secondary Education Act of 1965 (ESEA).”2
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https://oese.ed.gov/files/2020/09/Secretary-DeVos-Letter-to-Chief-State-School-
27 Officers-09-25-2020.pdf.
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https://oese.ed.gov/files/2020/10/Providing-Equitable-Services-under-the-CARES-Act-
28 Programs-Update-10-9-2020.pdf.
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Stipulation to Enter an Order and Judgment (20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 90 Filed 11/06/20 Page 3 of 5
1 Therefore, Plaintiffs and Defendants, having been represented by counsel and acting by
2 and through such counsel, hereby stipulate and consent to the entry of a permanent injunction as
3 follows:
4 1. As to all Plaintiffs and any local or state education agency, school district, or public
5 school located within the geographical boundaries of any Plaintiff (collectively,
6 Plaintiff Parties), the United States Department of Education, Secretary DeVos, and
7 their officers, agents, employees, attorneys, and any person acting in concert with
8 them, or at their behest, are permanently enjoined from:
9 a. Enforcing or implementing the provisions in the April 30, 2020 Guidance and
10 the Interim Final Rule, 85 Fed. Reg. 39479 (July 1, 2020), regarding the
11 proportional-share calculation to be used for CARES Act funds for the
12 provision of equitable services to students and teachers in non-public schools
13 under Section 18005 of the CARES Act;
14 b. Taking any action inconsistent with calculating the proportional share in
15 accordance with Section 1117(a)(4)(A) of the ESEA, for the provision of
16 equitable services to students and teachers in non-public schools under Section
17 18005 of the CARES Act;
18 c. Taking any action enforcing or implementing a requirement that funds provided
19 under Section 18002 or 18003 of the CARES Act supplement, not supplant,
20 other sources of funding or expenditures;
21 d. Taking any action enforcing or implementing a restriction on the use of funds
22 provided under Section 18002 or 18003 of the CARES Act based on whether a
23 public school participates or is eligible to participate in a program under Title I,
24 Part A of the ESEA; and
25 e. Enforcing or implementing any penalty or taking any other adverse action,
26 including the withholding, termination, suspension, or recovery of funds,
27 against a Plaintiff Party arising out of actions that a Plaintiff Party initiated
28 before the preliminary injunction order, dated August 26, 2020, taken in
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Stipulation to Enter an Order and Judgment (20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 90 Filed 11/06/20 Page 4 of 5
1 reliance on the April 30, 2020 Guidance or the Interim Final Rule, 85 Fed. Reg.
2 39479 (July 1, 2020).
3 2. This stipulation is contingent on this Court retaining jurisdiction to enforce this
4 permanent injunction as to any of the Plaintiff Parties.
5 3. Defendants also stipulate to waiving any rights they might have to seek reconsideration
6 of and/or appeal the preliminary injunction and the permanent injunction issued
7 pursuant to this stipulation.
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9 Dated: November 6, 2020 Respectfully submitted,
10 By: /s/ Garrett Lindsey
JEFFREY CLARK
11 XAVIER BECERRA Acting Assistant Attorney General
Attorney General of California MARCIA BERMAN
12 MICHAEL NEWMAN Assistant Director, Federal Programs Branch
Senior Assistant Attorney General
13 SARAH E. BELTON
Supervising Deputy Attorney General /s/ Kate Talmor
14 GARRETT LINDSEY KATE TALMOR (Maryland Bar)
JAMES F. ZAHRADKA II Trial Attorney
15 REBEKAH A. FRETZ U.S. Department of Justice, Civil Division
Deputy Attorneys General 1100 L St NW
16 Attorneys for Plaintiff State of California Washington, DC
(202) 616-8351
17 By: /s/ Neil Giovanatti kate.talmor@usdoj.gov
18 DANA NESSEL Attorneys for Defendants
Attorney General of Michigan
19 FADWA A. HAMMOUD
Solicitor General
20 NEIL GIOVANATTI*
TONI L. HARRIS*
21 Assistant Attorneys General
Attorneys for Plaintiff State of Michigan
22 *Appearing Pro Hac Vice
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Stipulation to Enter an Order and Judgment (20-cv-4478-JD)
Case 3:20-cv-04478-JD Document 90 Filed 11/06/20 Page 5 of 5
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ATTESTATION OF SIGNATURES
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I, Garrett M. Lindsey, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern
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District of California that concurrence in the filing of this document has been obtained from each
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signatory hereto.
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7 Dated: November 6, 2020 /s/ Garrett M. Lindsey
8 GARRETT M. LINDSEY
Deputy Attorney General
9 Attorney for State of California
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Stipulation to Enter an Order and Judgment (20-cv-4478-JD)
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