Link to the Opinion of the Court in NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al., Plaintiffs, v. ELISABETH D. DEVOS, et al., Defendants.
United States District Judge Dabney Friedrich of the District of Columbia issued the third and hardest smack down against Betsy DeVos on the CARES Act fiasco.
Unlike the previous two decisions, which were preliminary injunctions. this decision is a final grant of summary judgement.
Below is the summary of the decision.
In enacting the education funding provisions of the CARES Act, Congress spoke with a clear voice. It declared that relief funding shall be provided to private schools “in the same manner as provided under section 1117.” CARES Act § 18005. Contrary to the Department’s interim final rule, that cannot mean the opposite of what it says.
“The authority to issue regulations is not the power to make law, and a regulation contrary to a statute is void.” Orion Reserves Ltd. P’ship v. Salazar, 553 F.3d 697, 703 (D.C. Cir. 2009). It is long-settled that “[a] regulation which . . . operates to create a rule out of harmony with the statute, is a mere nullity.” Manhattan Gen. Equip. Co. v. Comm’r of Internal Revenue, 297 U.S. 129, 134 (1936). Thus, the Department’s interim final rule, which conflicts with the unambiguous text of the statute, is void. See 5 U.S.C. § 706(2)(A), ©; see Nat’l Min. Ass’n v. U.S. Army Corps of Engineers, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“[W]hen are viewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”)
As this is a final judgement rather than a preliminary injunction, DeVos can make a formal appeal though it will likely fall on deaf ears at the DC Circuit.