State of Washington v. DeVos et al
Filing
54
ORDER granting the State's 8 Motion for Preliminary Injunction. Signed by Judge Barbara J. Rothstein. (LH)
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 1 of 21
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UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
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STATE OF WASHINGTON
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Plaintiff,
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v.
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BETSY DEVOS, in her official capacity as )
Secretary of the United States Department of)
Education; and the UNITED STATES
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DEPARTMENT OF EDUCATION, a
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federal agency
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Defendants.
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CASE NO. 2:20-cv-1119-BJR
ORDER GRANTING MOTION FOR
PRELIMINARY INJUNCTION
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I.
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INTRODUCTION
Before the Court is
, seeking
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to enjoin Defendants Secretary Betsy DeVos and the Department of Education from implementing
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an interim final rule
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, which outlines how states may allocate funding
provided by the Coronavirus Aid, Relief, and Economic Security Act ( CARES Act ) to private
schools.
The State claims that the Interim Final Rule
effectively diverts emergency relief funding from economically disadvantaged public schools to
less disadvantaged private schools.
Dkt. No. 8. In essence, the parties
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Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 2 of 21
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dispute whether the CARES Act requires States to allocate funding to private schools using a
formula based on the percentage of students from low-income families who attend private school
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whether, as Defendants claim, the CARES
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Act authorized the Department to issue the Interim Final Rule, which directs States to allocate that
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funding based on total enrollment in private schools
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Having
reviewed the Motion, the opposition thereto, the record of the case, the relevant legal authorities,
and having conducted oral argument on August 10, 2020 via video-teleconference, the Court will
grant the Motion and issue the injunction
II.
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BACKGROUND
A. The COVID-19 Pandemic
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The case before the Court is but one of many disputes being played out against the backdrop
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of the COVID-19 pandemic. The pandemic has wreaked havoc on this nation and created novel
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and difficult questions for the courts. One of the most pressing issues is how to provide education
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for children at a time fraught with the dangers of a life-threatening, highly communicable disease.
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On February 29, 2020, as the virus spread through the State of Washington, Governor Jay
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Inslee declared a state of emergency. See Compl., Dkt. No. 1 ¶ 25; see also
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Proclamation 20-05 (Feb. 29, 2020). 1
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spread, Gov. Inslee announced the closure of all public and private K-12 schools in King,
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Snohomish, and Pierce Counties effective March 17 and lasting, at that time, through at least April
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Available at https://www.governor.wa.gov/sites/default/files/proclamations/2005%20Coronavirus%20%28final%29.pdf.
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24. Compl. ¶ 26. Through repeated orders by the Governor, schools throughout the State were
ordered closed for the remainder of the school year, forcing educators to transition to online
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instruction for all students. Id. ¶¶ 26, 30. The State reports that significant efforts have been taken
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to provide support to students in need in particular, including serving meals, providing special
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education and related services to students with disabilities, providing remote learning access for
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English learners, and offering computing and connectivity technology to low-income students. Id.
Many of these efforts are on-going.
B. The CARES Act GEER and ESSER Funds
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In response to the wide-ranging economic consequences of the pandemic, Congress passed
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the CARES Act, which the President signed on March 27, 2020. See Pub. L. No. 116-136, 134
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Stat. 281 (Mar. 27, 2020); Compl. ¶¶ 32 33.2 The CARES Act contains a wide array of federal
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funding designed to combat the consequences of the pandemic, including $30.75 billion for the
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creation of an Education Stabilization Fund
students. See Compl. ¶ 34.
The CARES Act directs the Secretary of Education to allocate ESF funding to three sub-
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to address educational needs
funds, two of which are pertinent here.3 See CARES Act § 18001(b); Compl. ¶¶ 34 44. The first
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Since the CARES Act was codified in scattered titles across the U.S. Code, the Court will refer to specific
provisions therein by their section within the CARES Act. For example, CARES Act sections 18003 and 18005,
relevant to this case, are codified in 20 U.S.C. § 3401 note.
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3
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The third subSee
CARES Act § 18004. Notably, however, at least two courts within the Ninth Circuit have recently granted
preliminary injunctions limiting the Department
thority to impose eligibility restrictions on students who may
receive HEER funding. See Oakley v. Devos, No. 20-cv-03215, 2020 WL 3268661 (N.D. Cal. June 17, 2020);
Washington v. DeVos, No. 20-cv-0182, 2020 WL 3125916 (E.D. Wash. June 12, 2020).
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is the
ation Relief
) Fund, for which Congress appropriated
approximately $3 billion. See CARES Act § 18002, § 18001(b)(1). The CARES Act directs the
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Secretary to make GEER funding available to the governor of each state based on the relative
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population of students in that state and, in particular, the relative population of students from low-
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income families. Id. § 18002(a), (b). The Act further provides that GEER funds may be used to
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e emergency support through gr
educational agency
deems have been most significantly impacted by coronavirus to
support the ability of such local educational agencies to continue to provide educational services
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to their students and to support the on-
Id. §
18002(a), (b), (c)(1).
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The second ESF fund is the Elementary and Secondary School Emergency Relief
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) Fund, for which Congress appropriated approximately $13.5 billion. See id. §§ 18003,
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18001(b)(2). The CARES Act directs the Secretary of Education to make ESSER funding
available by grant directly to SEAs, again according to a formula based on the relative population
of students from low-income families. Id. § 18003(b). The Act then instructs SEAs to provide the
funding to LEAs through sub-grants. Id. § 18003(c). The Act specifies the uses that LEAs may
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An LEA is
either administrative control or direction of, or to perform a service function for, public elementary schools or
303.23(a). In Washington, LEAs include school districts, charter schools, and
state-tribal education compact schools. Compl. ¶ 17. SEAs
agency or officer primarily responsible for the State supervision of public elementary schools and secondary
SEA is the Office of Superintendent for Public Instruction.
Compl. ¶ 39.
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put ESSER
oordination of preparedness and response efforts and
roviding principals and others school leaders with the resources necessary to address the needs
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of their individual schools.
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funds may be used for
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children with disabilities, English learners, racial and ethnic minorities, students experiencing
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-income children or students,
homelessness, and
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Id. § 18003(d)(4).
Critically for purposes of this dispute, Congress outlined how LEAs are to allocate GEER
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Id. § 18003(d)(1) (12). The statute explicitly provides that ESSER
and ESSER funding to non-public, i.e. private, schools. See Compl. ¶ 43 44. Specifically, Section
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18005 provides that
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services in the same manner as provided under section 1117 of the [Elementary and Secondary
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of 1965 to students and teachers in non-public schools, as determined
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receiving [GEER or ESSER] funds . . . shall provide equitable
in consultation with representatives of non-public schools.
CARES Act § 18005(a) (emphasis
added).
Given
reference to Section 1117 of the ESEA, closer examination of that statute
is necessary. The ESEA
is the
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statute by which Congress provides federal funding for primary and secondary education. Pub.
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89 10, 79 Stat. 27, as amended, 20 U.S.C. § 6301 et seq. Title I of the ESEA created a grant
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program designed to improve the academic achievement of disadvantaged children. See id. Under
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Title I, public schools are eligible to receive funding for schoolwide programs if 40 percent or
more of the children in the LEA attendance area come from low-income families.
Id. §
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6314(a)(1)(A).
Section 1117 of Title I
specifically referenced in the CARES Act
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outlines how LEAs
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 6 of 21
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are to share Title I funding with eligible private schools, instructing LEAs to provide services to
20 U.S.C. § 6320(a)(1). More specifically, the formula
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that determines how much Title I funding private schools are to receive
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proportion of funds allocated to participating school attendance areas based on the number of
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children from low-income families who attend private schools
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equal to the
Id. § 6320(a)(4)(A)(i). This
formula has consistently been interpreted to mean that LEAs are to share their Title I funding in
proportion to the number of students from low-income families that reside in their attendance area
but who attend private school.
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The State of Washington submitted its application for CARES Act funding pursuant to the
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GEER and ESSER Funds on April 27, 2020. Compl. ¶ 78; see also Compl., Ex. 6, Dkt. No. 1-9.
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The State was awarded $216.9 million in federal aid through the ESSER Fund and $ 56.8 million
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through the GEER Fund. Compl. ¶ 78;
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C. The
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at 6.
CARES Act Guidance and Interim Final Rule
On April 30, 2020, the Department published guidance purporting to interpret the provision
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53 55; see also Compl., Ex. 1, Dkt. No. 1-4 (
, Providing Equitable Services
to Students and Teachers in Non-Public Schools Under the CARES Act Programs (Apr. 30, 2020)
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Section 18005. Compl. ¶¶
5
Claiming an ambiguity in the statute, the Guidance directed LEAs to provide
private schools with CARES Act funding
the proportional share based on the number
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Available at https://web.archive.org/web/20200526004048/https:/oese.ed.gov/files/2020/04/FAQs-EquitableServices.pdf.
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of children enrolled in each non-public school whose students or teachers participate in the CARES
Act programs compared to the number of students enrolled in public schools in the LEA. Compl.,
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Ex. 1 at 4; see also id. at 6. In other words, the Guidance adopted a formula for allocating ESF
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funding to private schools, based on the total number of enrolled students, regardless of their
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income levels. This is the enrollment-based formula.
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On July 1, 2020, despite objections from numerous constituencies, including the State, to
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-based formula, the Department issued its Interim Final
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Rule.6 See CARES Act Programs; Equitable Services to Students and Teachers in Non-Public
Schools, 85 Fed. Reg. 39,479 (codified at 34 C.F.R. § 76.665) 7
; see also
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The State was not alone in its concern that the enrollment-based formula would improperly divert funding from
public to private schools. The Guidance garnered a bevy of reactions. See Compl. ¶¶ 56 58. For example,
ce to Section 1117 was clear and
required the use of the poverty-based formula. Compl., Ex. 2, Dkt. No. 1-5 (Letter from Carissa Moffat Miller,
,
https://ccsso.org/sites/default/files/2020-05/DeVosESLetter050520.pdf); Compl., Ex. 3, Dkt. No. 1-6 (Letter from
Educ. (May 20, 2020), https://edlabor.house.gov/imo/media/doc/2020-520%20Ltr%20to%20DeVos%20re%20Equitable%20Services.pdf).
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The final text of the Rule reads
(c) Determining proportional share.
(1) To determine the proportional share of funds for equitable services to students and teachers in non-public
elementary and secondary schools for each CARES Act program, an LEA must use one of the following
measures. The LEA need not use the same measure for each CARES Act program.
(i) An LEA using all its funds under a CARES Act program to serve only students and teachers in public
schools participating under Title I, Part A of the ESEA may calculate the proportional share in accordance
with paragraph (c)(1)(ii) of this section or by using
(A) The proportional share of Title I, Part A funds it calculated under section 1117(a)(4)(A) of the ESEA
for the 2019 2020 school year; or
(B) The number of children, ages 5 through 17, who attend each non-public school in the LEA that will
participate under a CARES Act program and are from low-income families compared to the total number
of children, ages 5 through 17, who are from low-income families in both Title I schools and participating
non-public elementary and secondary schools in the LEA.
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Compl. ¶¶ 62 73.
Based again on a claimed ambiguity in Section 18005, the Department gave LEAs two
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options. First, an LEA could choose to use either the enrollment-based or poverty-based formula,
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but only if it agreed to limit CARES Act funding to schools that are qualified to participate in the
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ESEA Title I grant program, and actually receive funding under that program. Alternatively, if
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the LEA elected to use its CARES Act funding for all schools within its attendance area, regardless
of Title I participation, the Final Interim Rule required the LEA to use the enrollment-based
formula in apportioning funding to private schools. Interim Final Rule at 39,481; see also 34
C.F.R. § 76.665(c).
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According to the State, this choice has the effect of increasing the proportion of CARES
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Act funding going to its private schools, at the expense of its public schools. In Washington, as in
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many states, not all Title I eligible schools choose to participate in Title I. The State avers that of
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its 2,369 primary and secondary public schools, 1,594 are eligible to participate in Title I, but only
1,002 actually do. Compl. ¶ 74. Regardless of which option an LEA chooses, in a state like
Washington in which not all Title I eligible schools participate in that program, private schools
will receive a larger share of CARES Act funding than they would under a straight-forward
-based formula.
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(ii) Any other LEA must calculate the proportional share based on enrollment in participating non-public
elementary and secondary schools in the LEA compared to the total enrollment in both public and
participating non-public elementary and secondary schools in the LEA.
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34 C.F.R. §76.665(c).
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D. Procedural History
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The State filed suit
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on July 20, 2020. See
Compl., Dkt. No. 1.8
; three under the
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, 5 U.S.C. § 706, (Counts I to III),9 and one each under
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Separation of Powers (Count IV) and the Spending Clause, U.S. CONST. art. I. § 8, cl. 1 (Count V).
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Compl. ¶¶ 95 119. The Complaint seeks injunctive and declaratory relief, including a declaration
that the Interim Final Rule is contrary to law and invalid; and preliminary and permanent
injunctions prohibiting its implementation, compelling the issuance of the contested CARES
funding to the State without the restrictions imposed by the Interim Final Rule, and permitting the
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State to use the apportionment formula provided by Section 1117 of the ESEA. Id. at 30, ¶¶ a f.
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On July 23, 2020, the State filed its Motion for Preliminary Injunction, asking the Court to
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preliminarily enjoin Defendants from implementing or enforcing the Interim Final Rule. See
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Mot. for Prelim. Inj., Dkt. No. 8. In its response to the motion, the Department denies that the
State is likely to succeed on the merits of its claims, or that the State will suffer irreparable harm
absent an injunction.
i
to
Dkt. No. 50. A hearing
on the motion took place, over video-teleconferencing, on August 10, 2020. Dkt. No. 52.
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The parties have advised the Court that this is one of four related cases challenging the same agency action. See
Council of Parent Attorneys and Advocates, Inc. v. DeVos, et al., No. 20-cv-02310 (D. Md. Filed Aug. 10, 2020);
NAACP, et. al. v. Elizabeth DeVos, et. al., 20-cv-1996 (D.D.C. filed July 22, 2020); State of Michigan, et. al. v.
Betsy DeVos, et. al., No. 20-cv-4478 (N.D. Cal. filed July 7, 2020).
9
In Count III of its Complaint, t
justification for foregoing notice and comment. Compl. ¶¶ 103 06. The State has not, however, raised this claim in
this Motion.
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III.
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LEGAL STANDARD
A preliminary injunction is an extraordinary remedy. Munaf v. Geren, 553 U.S. 674, 689
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90 (2008). To demonstrate entitlement to a preliminary injunction, the movant bears the burden
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of establishing: (1) likelihood of success on the merits; (2) likelihood of suffering irreparable harm
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in the absence of a preliminary relief; (3) that the balance of equities tips in its favor; and (4) that
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an injunction is in the public interest. See E. Bay Sanctuary Covenant v. Barr, 964 F.3d 832, 844
45 (9th Cir. 2020) (citing
, 559 F.3d 1046, 1052
(9th Cir. 2009)); see also Pimentel-Estrada v. Barr, No. 20-cv-495, 2020 WL 2092430, at *10
(W.D. Wash. Apr. 28, 2020).
[]
E.
11
Bay Sanctuary Covenant, 964 F.3d at 845 (quoting Drakes Bay Oyster Co. v. Jewell, 747 F.3d
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1073, 1092 (9th Cir. 2014)).
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In weighing whether a preliminary injunction is appropriate, courts in this Circuit may use
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so that a stronger showing of one
Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 35 (9th Cir. 2011); see also Al Otro Lado v.
Wolf, 952 F.3d 999, 1007 (9th Cir. 2020); Kater v. Churchill Downs Inc., 423 F. Supp. 3d 1055,
1061 (W.D. Wash. 2019).
IV.
DISCUSSION
A. Likelihood of Success on the Merits
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Innovation Law Lab v. Wolf, 951 F.3d 1073, 1080 (9th Cir. 2020). The State bears the burden of
showing that it is likely to succeed on the merits of its claims. See E. Bay Sanctuary Covenant,
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964 F.3d at 845.
1. Administrative Procedure Act Claims (Counts I and II)
The State
the APA, which broadly sets
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forth the procedures by which federal agencies are accountable to the public and their actions
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subject to review by the courts.
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,
140 S. Ct. 1891, 1905 (2020) (quoting Franklin v. Massachusetts, 505 U.S. 788, 796 (1992)).
Under the APA, agencies must
to set aside any action which runs afoul of
requirements. Id. (citations omitted). When
reviewing a claim under the APA, the Court is limited to reviewing
11
Id. at 1907 (quoting Michigan v. EPA, 576 U.S. 743, 758
12
(2015)). 5 U.S.C. § 706 lays out the familiar scope of judicial review under the APA and instructs,
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in its relevant parts
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to be . . . (A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
[or] . . . (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right
5 U.S.C. § 706(2). In its Motion, the State challenges the Interim Final Rule on both grounds,
which the Court examines in turn.
a. Count I- The Agency Action is in Excess of Statutory Authority and Not in
Accordance with Law
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Interim Final Rule is in excess of statutory authority
and not in accordance with law. Compl. ¶¶ 95 98;
at 8 11;
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in Supp. of Mot. for Prelim. Inj., Dkt. No. 51 at 2 5. Specifically, the State claims that Congress
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did not delegate to the Department the authority to promulgate rules under Section 18005 of the
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CARES Act. Compl. ¶ 97. Further, the State argues that Section 18005 is not ambiguous, and
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that the Department therefore has no implicit rulemaking authority.
8. The Department, in response, argues that it had general rulemaking authority to promulgate the
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Interim Final Rule and that Section 18005 is ambiguous and, therefore, it had implicit authority to
4
interpret the statute by way of the Rule.
5
9.
6
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to
at 7
i. There is No Delegation of Rulemaking Authority to the Department
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8
i
The Department does not, and indeed cannot, argue that Congress explicitly delegated it
rulemaking authority over the CARES Act, because such authority is simply absent from its text.
Instead, the Department argues that its authority to promulgate the Interim Final Rule is grounded
11
in
12
Interim Final Rule at 39,481. Again, however, nothing in either the text or construction of Section
13
18005 of the CARES Act evidences an intent to import general rulemaking authority. See
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rulemaking authority in 20 U.S.C. § 1221e-3 and 20 U.S.C. § 3474. See
Washington, 2020 WL 3125916, at *9 ( Nothing in the CARES Act grants [the Department]
authority to use [its] general rulemaking power . . . to impose conditions on the general allocations
). As the State observes, other sections of the CARES Act, in contrast,
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affirmatively grant the implementing agencies such authority. See, .e.g., CARES Act §§ 1114,
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3513(f), 12003(c). Congress therefore knew how to delegate such authority but declined to do so
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in Section 18005. The Court therefore finds that the Department did not have explicit authority
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either specific or general
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to promulgate rules under this section of the CARES Act.
ii. The Statute is Not Ambiguous
The Department further argues that it was permitted to engage in rulemaking because
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Section 18005 is ambiguous, and ambiguities in statutes within an agency s jurisdiction to
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administer are delegations of authority to the agency to fill the statutory gap in a reasonable
n v. Brand X Internet Servs., 545 U.S. 967, 980,
2
3
(2005).
4
T
5
of construction.
6
7
8
9
Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019) (citing Chevron U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n.9 (1984)). This involves
the text, structure, history, and purpose of a regulation, in all the ways [the Court]
would if it had no agency to fall back on
Id. (quoting Pauley v. BethEnergy Mines, Inc., 501
10
U.S. 680, 707 (1991) (Scalia, J., dissenting)). Based on such a review, a statute is only ambiguous
11
if it is susceptible to more than one reasonable interpretation
12
E.P.A., 727 F.3d 934, 938 (9th Cir. 2013).
13
14
15
16
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Here, the statute could hardly be less ambiguous.
Alaska Wilderness League v. U.S.
In Section 18005, Congress
unequivocally and plainly instructed the Department to allocate GEER and ESSER funding in
the same manner as provided under section 1117 of the ESEA of 1965 to students and teachers in
non-public schools.
This directive, referring to a simple, familiar, and time-tested formula,
18
includes all the hallmarks of inflexibility, such as an explicit
19
an overt statutory cross-reference. Moreover, historically speaking,
20
Section 1117 of the ESEA cannot be construed as casual or incidental; it is an explicit citation to
21
22
a formula with which LEAs are well acquainted
educational programs, providing funding for
.
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24
The Guidance and Interim Final Rule
claims to ambiguity, which
These purported justifications do not
25
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alter
conclusion. First, the Interim Final Rule claims ambiguity arising from an alleged
tension
3
circumstances, on the one hand,
4
on the other. See, e.g.
5
to combat the effects of . . . COVID-19. . . . Nothing in the CARES Act suggests Congress intended
6
7
8
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students,
S Act is a special appropriation
to differentiate between students based upon the public or non-public nature of their school with
respect to eligibility fo
This argument is unavailing. Distribution of funds under the poverty-based formula will
10
not result in private schools receiving no ESF funding; only in receiving funding in a smaller
11
proportion than they would under the Department-created formula. This reflects
12
intent in the CARES Act to distribute education funding to all, but to concentrate on those in direst
13
need. As the CARES Act explicitly provides, one of the central uses for the ESSER Fund is to
14
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17
stated
the unique needs of low-income children or students
communities. CARES Act § 18003(d)(4). Furthermore, as the State notes, private schools have
access to other sources of relief provided by Congress to which public schools do not, such as
18
Payback Protection Program loans and benefits under the Families First Coronavirus Response
19
Act. See Compl. ¶ 87. There is no tension between the two statutes, and certainly not one that
20
creates ambiguity sufficient to sanction rulemaking.
21
22
The Court also rejects the Interim Final Rule
to create ambiguity from the
. First, the Rule argues that in prescribing how funding should be allocated,
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Interim Final Rule at 39,481.
1
an ambiguity arises from the use of a slightly longer
2
3
4
generously put, a stretch; its adoption would render all but the most laconic Congressional
5
directives ambiguous.
Section 18005 contains a clear reference to the poverty-based formula
found in Section 1117
. See 20 U.S.C. § 6320(a)(4)(A)(i); see Judd
6
7
8
9
v. Weinstein, No. 19-55499, 2020 WL 4343738, at *3 (9th Cir. July 29, 2020)
nless the statute
clearly expresses otherwise, we interpret statutory terms in accordance with their ordinary
10
meaning . The wording choice here simply does not create an ambiguity, or otherwise evidence
11
Congressional intent to open up the funding process to agency rulemaking. See Connecticut Nat.
12
Bank v. Germain, 503 U.S. 249, 253 54 (1992)
13
thumb that help courts determine the meaning of legislation, and in interpreting a statute a court
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canons of construction are no more than rules of
should always turn first to one, cardinal canon before all others. We have stated time and again
that courts must presume that a legislature says in a statute what it means and means in a statute
what it says there.
Second, the Interim Final Rule identifies ambiguity
inclusion of
19
consultation and public control of funds provisions in Section 18005 notwithstanding the fact that
20
Section 1117 already contains similar provisions. Interim Final Rule at 39,481; compare CARES
21
22
presentatives of non18005(b) (Public Control of Funds) with 20 U.S.C. § 6320(a)(1)(A), § 6320(b) (consultation
23
24
25
provisions), § 6320(d) (Public Control of Funds). Given the purportedly duplicative provisions,
according to the Department,
,
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Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 16 of 21
1
2
would create redundancies requiring resolution.
This argument also fails.
3
the Department argues, the importation of all o
4
A straightforward reading of
is that
5
6
-based formula; not that it requires
wholesale import of all of Section 1117.
essentially creates
7
. This the APA
8
9
10
does not allow. See In re Pangang Grp. Co., LTD., 901 F.3d 1046, 1056 (9th Cir. 2018)
we
disfavor efforts to use canons of construction to introduce ambiguity into straightforward text
11
12
statutes can be more easily interpreted as purposeful. Congress instructed SEAs and LEAs
13
14
15
16
further than their familiar mirrors in Section 1117 to determine how such provisions are intended
to operate.
17
18
19
20
21
22
educational agency receiving funds under sections 18002 or 18003 of this title shall provide
CARES Act § 18005(a).
the Department
apparently discerns a congressional intent that funding for private schools should be equal or
close thereto. See, e.g.,
to
mandated that these services be provided equitably
Congress
for the benefit of both public and non-public
23
24
original). First, it should be apparent that
25
16
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 17 of 21
Compare Equitable, Dictionary.com (last visited Aug. 21, 2020)10
1
characterized by equity or fairness; j
2
with Equal, Dictionary.com
3
(last visited Aug. 21, 2020)11
4
not equal, which is certainly the case when Congress chooses to concentrate funding on those in
5
the most need.
6
7
8
9
as great as; the same as
Funding can be equitable even if it is
in Section 18005
, and does not
refer, as the Department would have it, to how funds should be apportioned. Thus, the context and
plain meaning of this term show that Congress meant
apportioned funds themselves, i.e. the support LEAs must provide private schools, not to the
10
manner of apportioning that funding. For that, the Court repeats, Congress referred the LEAs to
11
Section 1117.
12
Based on the foregoing, the Court concludes that Congress neither explicitly, nor implicitly
13
by ambiguity, granted the Department the authority to promulgate the Interim Final Rule. The
14
15
16
17
Court finds that the
promulgation was in excess of statutory authority and not in accordance
with law, and that the State, therefore, is likely to succeed on the merits of this claim. See 5 U.S.C.
§ 706(2)(A) and (C).
b. Count II- Arbitrary and Capricious Agency Action
18
19
The State also claims that the Interim Final Rule runs contrary to 5 U.S.C. § 706(2)(A) of
20
the APA because it is arbitrary and capricious. Compl. ¶ 99 102. As the Court has already
21
concluded that the Department did not have the authority to promulgate the Interim Final Rule in
22
23
24
25
10
Available at https://www.dictionary.com/browse/equitable?s=t.
11
Available at https://www.dictionary.com/browse/equal.
17
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 18 of 21
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2
3
4
5
6
7
the first instance, however, it need not visit this claim. See Oakley, 2020 WL 3268661, at *12
(declining to rule on arbitrary and capriciousness); Washington, 2020 WL 3125916, at *11 (same).
2. Constitutional Claims (Counts IV and V)
The State claims the Interim Final Rule runs afoul of two Constitutional principles, (1)
Separation of Powers (Count IV) and (2) the Spending Clause (Count V). Compl. ¶¶ 107 19.
Again, however, given the conclusion that the Department lacked authority to promulgate
the Rule, the Court declines to reach this question. It is well-established that courts should not
8
9
10
Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 205 (2009) (internal quotation and
11
citation omitted); see also State v. Trump, 441 F. Supp. 3d 1101, 1125 (W.D. Wash. 2020). As
12
the Court has already determined that the State is likely to succeed on its APA claim, it need not
13
reach the St
14
15
16
17
18
constitutional claims. See Washington, 2020 WL 3125916, at *11.
B. Irreparable Harm
It is the burden of a plaintiff seeking a preliminary injunction to demonstrate that
irreparable harm is likely in the absence of an injunction. Winter v. Nat. Res. Def. Council, Inc.,
555 U.S. 7, 22 (2008) (listing cases); see also E. Bay Sanctuary Covenant, 964 F.3d at 854.
harm for which there is no adequate legal remedy,
19
20
such as an award of damages
21
Cir. 2014); see also E. Bay Sanctuary Covenant v. Trump, 950 F.3d 1242, 1280 (9th Cir. 2020)
22
23
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1068 (9th
[E]conomic harm is not generally considered irreparable. But where parties cannot typically
recover monetary damages flowing from their injury
24
25
economic harm can be considered irreparable. .
18
as is often the case in APA cases
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 19 of 21
The State s claims to irreparable harm are myriad, and include interference with the
1
2
obligation enshrined in its Constitution to provide essential education to its children. See
3
Mot. for Prelim. Inj. at 19 23. The heart
4
public schools, and in particular
5
by the
6
7
8
Washington
public school students, are irreparably harmed
diversion of CARES Act funding to private schools. The Court agrees
that this potential harm is great, and irreparable.
The nature of this pandemic is that its consequences have fallen most heavily on the
The funding provided
9
10
throughout the CARES Act, and in particular to schools, is desperately and urgently needed to
11
provide some measure of relief
12
Congress, in its wisdom and without equivocation, determined that funding to schools should be
13
distributed according to the same formula found in Section 1117 of the ESEA; to allow otherwise
14
15
16
17
s, many of which cannot be undone.
under the guise of a manufactured ambiguity runs counter to the APA and to Congressional intent.
The Department claim that the State faces only an economic injury, which ordinarily does
not qualify as irreparable harm, is remarkably callous, and blind to the realities of this
18
extraordinary pandemic and the very purpose of the CARES Act: to provide emergency relief
19
where it is most needed. The school year is rapidly approaching; every day that goes by in which
20
educators are denied access to these funds creates unnecessary risk, to both the health and
21
22
districts, the percentage of lowincome families is significantly higher in public schools than in private schools. Compl. ¶ 55. As
23
24
25
a consequence, distribution of CARES Act funding according to an enrollment-based formula
ineluctably advantages private schools at the expense of public schools. Forcing the State to divert
19
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 20 of 21
1
2
3
funds from public schools ignores the extraordinary circumstances facing the State and its most
disadvantaged students.
The Court therefore concludes that
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
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; that harm is, with potentially tragic consequences in this
case, irreparable.
See Oakley, 2020 WL 3268661, at *16 17 (finding irreparable injury);
Washington, 2020 WL 3125916, at *11 (same).
C. Balance of Equities and Public Interest
As a final consideration,
consider the effect on each party of
Winter,
555 U.S. at 24 (quotation marks and citation omitted).
The State argues that the balance of equities and the public interest tilts in its favor because
such interests disfavor the perpetuation of an unlawful agency action.
at 23 24;
at 8. Further, the State argues, the public
interest favors permitting the State to expend the emergency funds Congress allocated to serve its
most vulnerable students. The Department replies that the balance of equities disfavors an
injunction and that the State highlights only the harm to public schools and discounts the harm to
private schools.
i
to
at 14 15.
The Court concludes that the balance of equities favors the issuance of a preliminary
injunction.
There is generally no public interest in the perpetuation of unlawful agency action.
To the contrary, there is a substantial public interest in having governmental agencies abide by the
23
League of Women Voters of United States
24
25
v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal quotations and citations omitted). Conversely,
20
Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 21 of 21
1
2
public interest tips strongly in favor of permitting the State to apportion its emergency funding
according to Congress
.
3
See Oakley, 2020 WL 3268661, at *17 18 (finding the balance of equities favored the State);
4
Washington, 2020 WL 3125916, at *12 (same).
5
6
7
8
9
10
V.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS
Injunction. Dkt. No. 8. The Court hereby ORDERS as follows
1) The United States Department of Education, Secretary of Education Betsy DeVos, and
their officers, agents, servants, employees, attorneys, and any person in active concert or
11
participation with them, are hereby preliminarily enjoined from implementing or enforcing
12
the provisions in the Guidance of April 30, 2020 or the Interim Final Rule issued July 1,
13
2020.
14
2) No bond shall be required pursuant to Federal Rule of Civil Procedure 65(c).
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17
DATED this 21st day of August, 2020.
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_______________________________
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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