State of Washington v. DeVos et al, No. 2:2020cv01119 - Document 54 (W.D. Wash. 2020)
Court Description: ORDER granting the State's 8 Motion for Preliminary Injunction. Signed by Judge Barbara J. Rothstein. (LH)
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State of Washington v. DeVos et al Doc. 54 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 1 of 21 1 2 3 4 5 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 9 10 11 12 13 14 15 ) STATE OF WASHINGTON ) ) Plaintiff, ) ) v. ) ) BETSY DEVOS, in her official capacity as ) Secretary of the United States Department of) Education; and the UNITED STATES ) DEPARTMENT OF EDUCATION, a ) federal agency ) ) Defendants. ) CASE NO. 2:20-cv-1119-BJR ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION 16 I. 17 18 INTRODUCTION Before the Court is , seeking 19 to enjoin Defendants Secretary Betsy DeVos and the Department of Education from implementing 20 an interim final rule 21 22 23 24 25 , 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 1 Dockets.Justia.com Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 2 of 21 1 2 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 - 3 whether, as Defendants claim, the CARES 4 Act authorized the Department to issue the Interim Final Rule, which directs States to allocate that 5 funding based on total enrollment in private schools 6 7 8 9 - 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. 10 BACKGROUND A. The COVID-19 Pandemic 11 12 The case before the Court is but one of many disputes being played out against the backdrop 13 of the COVID-19 pandemic. The pandemic has wreaked havoc on this nation and created novel 14 and difficult questions for the courts. One of the most pressing issues is how to provide education 15 for children at a time fraught with the dangers of a life-threatening, highly communicable disease. 16 On February 29, 2020, as the virus spread through the State of Washington, Governor Jay 17 18 Inslee declared a state of emergency. See Compl., Dkt. No. 1 ¶ 25; see also 19 Proclamation 20-05 (Feb. 29, 2020). 1 20 spread, Gov. Inslee announced the closure of all public and private K-12 schools in King, 21 Snohomish, and Pierce Counties effective March 17 and lasting, at that time, through at least April 22 23 24 25 1 Available at https://www.governor.wa.gov/sites/default/files/proclamations/2005%20Coronavirus%20%28final%29.pdf. 2 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 3 of 21 1 2 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 3 instruction for all students. Id. ¶¶ 26, 30. The State reports that significant efforts have been taken 4 to provide support to students in need in particular, including serving meals, providing special 5 education and related services to students with disabilities, providing remote learning access for 6 7 8 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 9 In response to the wide-ranging economic consequences of the pandemic, Congress passed 10 11 the CARES Act, which the President signed on March 27, 2020. See Pub. L. No. 116-136, 134 12 Stat. 281 (Mar. 27, 2020); Compl. ¶¶ 32 33.2 The CARES Act contains a wide array of federal 13 funding designed to combat the consequences of the pandemic, including $30.75 billion for the 14 15 16 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- 17 18 to address educational needs funds, two of which are pertinent here.3 See CARES Act § 18001(b); Compl. ¶¶ 34 44. The first 19 20 21 2 22 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. 23 3 24 25 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). 3 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 4 of 21 1 2 is the ation Relief ) Fund, for which Congress appropriated approximately $3 billion. See CARES Act § 18002, § 18001(b)(1). The CARES Act directs the 3 Secretary to make GEER funding available to the governor of each state based on the relative 4 population of students in that state and, in particular, the relative population of students from low- 5 income families. Id. § 18002(a), (b). The Act further provides that GEER funds may be used to 6 7 8 9 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 10 to their students and to support the on- 11 18002(a), (b), (c)(1). 4 Id. § 12 The second ESF fund is the Elementary and Secondary School Emergency Relief 13 ) Fund, for which Congress appropriated approximately $13.5 billion. See id. §§ 18003, 14 15 16 17 18 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 19 20 21 22 23 24 4 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. 25 4 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 5 of 21 1 2 put ESSER oordination of preparedness and response efforts and roviding principals and others school leaders with the resources necessary to address the needs 3 of their individual schools. 4 funds may be used for 5 children with disabilities, English learners, racial and ethnic minorities, students experiencing 6 -income children or students, homelessness, and 7 Id. § 18003(d)(4). Critically for purposes of this dispute, Congress outlined how LEAs are to allocate GEER 8 9 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 10 18005 provides that 11 services in the same manner as provided under section 1117 of the [Elementary and Secondary 12 of 1965 to students and teachers in non-public schools, as determined 13 14 15 16 17 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 18 statute by which Congress provides federal funding for primary and secondary education. Pub. 19 89 10, 79 Stat. 27, as amended, 20 U.S.C. § 6301 et seq. Title I of the ESEA created a grant 20 program designed to improve the academic achievement of disadvantaged children. See id. Under 21 22 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. § 23 24 25 6314(a)(1)(A). Section 1117 of Title I specifically referenced in the CARES Act 5 outlines how LEAs Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 6 of 21 1 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 2 3 that determines how much Title I funding private schools are to receive 4 proportion of funds allocated to participating school attendance areas based on the number of 5 children from low-income families who attend private schools 6 7 8 9 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. - 10 The State of Washington submitted its application for CARES Act funding pursuant to the 11 GEER and ESSER Funds on April 27, 2020. Compl. ¶ 78; see also Compl., Ex. 6, Dkt. No. 1-9. 12 The State was awarded $216.9 million in federal aid through the ESSER Fund and $ 56.8 million 13 through the GEER Fund. Compl. ¶ 78; 14 C. The 15 at 6. CARES Act Guidance and Interim Final Rule On April 30, 2020, the Department published guidance purporting to interpret the provision 16 - 17 18 19 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) 20 21 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 22 23 24 25 5 Available at https://web.archive.org/web/20200526004048/https:/oese.ed.gov/files/2020/04/FAQs-EquitableServices.pdf. 6 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 7 of 21 1 2 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., 3 Ex. 1 at 4; see also id. at 6. In other words, the Guidance adopted a formula for allocating ESF 4 funding to private schools, based on the total number of enrolled students, regardless of their 5 income levels. This is the enrollment-based formula. 6 On July 1, 2020, despite objections from numerous constituencies, including the State, to 7 -based formula, the Department issued its Interim Final 8 9 10 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 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 6 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). 7 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. 7 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 8 of 21 1 2 Compl. ¶¶ 62 73. Based again on a claimed ambiguity in Section 18005, the Department gave LEAs two 3 options. First, an LEA could choose to use either the enrollment-based or poverty-based formula, 4 but only if it agreed to limit CARES Act funding to schools that are qualified to participate in the 5 ESEA Title I grant program, and actually receive funding under that program. Alternatively, if 6 7 8 9 10 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). 11 According to the State, this choice has the effect of increasing the proportion of CARES 12 Act funding going to its private schools, at the expense of its public schools. In Washington, as in 13 many states, not all Title I eligible schools choose to participate in Title I. The State avers that of 14 15 16 17 18 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. 19 20 21 22 23 24 (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. 25 34 C.F.R. §76.665(c). 8 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 9 of 21 D. Procedural History 1 The State filed suit 2 3 on July 20, 2020. See Compl., Dkt. No. 1.8 ; three under the 4 , 5 U.S.C. § 706, (Counts I to III),9 and one each under 5 Separation of Powers (Count IV) and the Spending Clause, U.S. CONST. art. I. § 8, cl. 1 (Count V). 6 7 8 9 10 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 11 State to use the apportionment formula provided by Section 1117 of the ESEA. Id. at 30, ¶¶ a f. 12 On July 23, 2020, the State filed its Motion for Preliminary Injunction, asking the Court to 13 preliminarily enjoin Defendants from implementing or enforcing the Interim Final Rule. See 14 15 16 17 18 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. 19 20 21 22 23 24 25 8 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. 9 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 10 of 21 III. 1 2 LEGAL STANDARD A preliminary injunction is an extraordinary remedy. Munaf v. Geren, 553 U.S. 674, 689 3 90 (2008). To demonstrate entitlement to a preliminary injunction, the movant bears the burden 4 of establishing: (1) likelihood of success on the merits; (2) likelihood of suffering irreparable harm 5 in the absence of a preliminary relief; (3) that the balance of equities tips in its favor; and (4) that 6 7 8 9 10 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 12 1073, 1092 (9th Cir. 2014)). 13 In weighing whether a preliminary injunction is appropriate, courts in this Circuit may use 14 15 16 17 18 19 20 21 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 22 23 24 25 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, 10 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 11 of 21 1 2 3 964 F.3d at 845. 1. Administrative Procedure Act Claims (Counts I and II) The State the APA, which broadly sets 4 forth the procedures by which federal agencies are accountable to the public and their actions 5 subject to review by the courts. 6 7 8 9 10 , 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, 13 in its relevant parts 14 15 16 17 18 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 19 20 21 22 T Interim Final Rule is in excess of statutory authority and not in accordance with law. Compl. ¶¶ 95 98; at 8 11; 23 in Supp. of Mot. for Prelim. Inj., Dkt. No. 51 at 2 5. Specifically, the State claims that Congress 24 did not delegate to the Department the authority to promulgate rules under Section 18005 of the 25 CARES Act. Compl. ¶ 97. Further, the State argues that Section 18005 is not ambiguous, and 11 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 12 of 21 1 2 that the Department therefore has no implicit rulemaking authority. 8. The Department, in response, argues that it had general rulemaking authority to promulgate the 3 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 9 10 to at 7 i. There is No Delegation of Rulemaking Authority to the Department 7 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 14 15 16 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, 17 18 affirmatively grant the implementing agencies such authority. See, .e.g., CARES Act §§ 1114, 19 3513(f), 12003(c). Congress therefore knew how to delegate such authority but declined to do so 20 in Section 18005. The Court therefore finds that the Department did not have explicit authority 21 either specific or general 22 23 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 24 25 Section 18005 is ambiguous, and ambiguities in statutes within an agency s jurisdiction to 12 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 13 of 21 1 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 17 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 . 23 24 The Guidance and Interim Final Rule claims to ambiguity, which These purported justifications do not 25 13 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 14 of 21 1 2 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 9 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 15 16 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, 23 24 25 14 Case 2:20-cv-01119-BJR Document 54 Filed 08/21/20 Page 15 of 21 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 14 15 16 17 18 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, , 15 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 1 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 21 22 ; 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). 15 16 17 DATED this 21st day of August, 2020. 18 19 20 _______________________________ BARBARA J. ROTHSTEIN UNITED STATES DISTRICT JUDGE 21 22 23 24 25 21
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