IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF ILLINOIS 

EASTERN DIVISION 

CHICAGO TEACHERS UNION, 

 Plaintiff, 

 v. 

BETSY DEVOS, in her official capacity 

as the Secretary of the United States 

Department of Education; UNITED 

STATES DEPARTMENT OF 

EDUCATION; and BOARD OF 

EDUCATION OF THE CITY OF 

CHICAGO, 

 Defendants. 

No. 20-cv-02958 

Judge John F. Kness 

MEMORANDUM OPINION AND ORDER 

 This case concerns one of the myriad challenges presented by the COVID-19 

crisis: how best to teach children—specifically those who need special services—

during a time when the schoolhouse door remains closed for safety. In this one-count 

action, CTU alleges that the Secretary of the United States Department of Education, 

the Department itself, and the Board of Education of the City of Chicago violated the 

Administrative Procedures Act (“APA”) by not asking Congress for authority to waive 

certain documentation requirements relating to special education and services for 

children. According to CTU, by “failing to waive” these requirements, Defendants 

have acted arbitrarily and capriciously and caused CTU’s members to be “diverted” 

by a “massive bureaucratic distraction.” CTU seeks a temporary restraining order 

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and preliminary injunction relieving CTU members from the obligations that 

Defendants have allegedly refused to waive. 

 Although the Court is sympathetic to the challenges inherent in providing 

remote special education and services, the legal deficiencies in CTU’s case are rife. 

As explained below, CTU likely lacks standing to proceed in federal court. CTU also 

faces significant barriers under the APA, and with respect to the Board of Education, 

CTU has not pleaded a viable independent claim. CTU has thus not met the threshold 

requirement for an injunction of showing some likelihood of success on the merits of 

its case. As a result, the Court denies CTU’s motion for preliminary injunctive relief. 

I. BACKGROUND 

For children who require special education and services, two provisions of 

federal law are particularly relevant: the Individuals with Disabilities Education Act 

(“IDEA”) (20 U.S.C. § 1400, et seq.) and Section 504 of the Rehabilitation Act of 1973 

(29 U.S.C. § 701, et seq.). Children who are eligible for special education and services 

under the IDEA must be provided an “individualized educational program,” or “IEP.” 

20 U.S.C. § 1401(9)(D), (14). An IEP “is the means by which special education and 

related services are ‘tailored to the unique needs’ of a particular child.” Endrew F. ex 

rel. Joseph F. v. Douglas Cty. Sch. Dist., RE–1, — U.S. —, 137 S. Ct. 988, 994 (2017) 

(quoting Bd. of Ed. of Hendrick Hudson Cent. Sch. Dist., Westchester Cty. v. Rowley, 

458 U.S. 176, 181 (1982)). The IEP “sets out the child’s present academic and 

functional performance, establishes measurable academic and functional goals for 

the child, and states the special education and related services that will be provided 

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for the child.” Middleton v. D.C., 312 F. Supp. 3d 113, 121 (D.D.C. 2018) (citing 20 

U.S.C. § 1414(d)(1)(A)). 

Every IEP must be drafted by a team that includes the child’s parents or 

guardians, the child’s teacher, a representative of a local educational agency, and, 

whenever appropriate, the child. 20 U.S.C. § 1414(d)(1)(B). This team reviews the 

child’s progress “periodically, but not less frequently than annually, to determine 

whether the annual goals for the child are being achieved.” Id. § 1414(d)(4)(A)(i). 

Further, the IEP team is required to “revise[] the IEP as appropriate to address,” 

among other things, “any lack of expected progress toward the annual goals and in 

the general education curriculum, where appropriate; [or] . . . the child’s anticipated 

needs; or . . . other matters.” Id. § 1414(d)(4)(A)(ii). At a minimum, the IEP must be 

“reasonably calculated to enable [the] child to make progress appropriate in light of 

the child’s circumstances.” Endrew F., 137 S. Ct. at 999. 

It is undisputed that the COVID-19 pandemic has upended nearly every aspect 

of American life, and education is no exception. In attempting to address the 

nationwide effects of the pandemic, Congress passed the Coronavirus Aid, Relief and 

Economic Security Act (“CARES Act”) (Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 

2020). It constitutes both the largest economic stimulus package in United States 

history and an effort to adapt laws and practices to current circumstances. To this 

latter end, the CARES Act effected modifications to laws and regulations governing 

the administration of healthcare, taxes, entitlement benefits, mail delivery, student 

loans, retirement planning, credit reporting, and—most pertinently here—education. 

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Id. 

 To fit existing federal education regulations to these changed circumstances, 

Congress allowed the Secretary to waive select, specifically-enumerated statutory 

and administrative rules. Id. § 3511(a), (b). Not included was the 

IDEA/Rehabilitation Act requirement that school districts provide free and 

appropriate public education (“FAPE”)—the provision from which are derived 

regulations requiring schools to prepare IEPs. 20 U.S.C. § 1400(d)(1)(A); 34 C.F.R. 

§§ 300.201, 300.320-22. But Congress was not completely silent concerning 

provisions not addressed by the CARES Act: rather, Congress instructed the 

Secretary to recommend “any additional waivers . . . the Secretary believes are 

necessary to be enacted into law to provide flexibility to States and local educational 

agencies to meet the needs of students.” Id. § 3511(d)(4). 

On April 27, 2020, the Secretary submitted her recommendations. R. 10-1.1

Although the Secretary’s report to Congress addressed a number of issues, it did not 

include a recommendation that the learning plan requirements be waived. Id. Quite 

the opposite: the Secretary explicitly stated that “[t]he Department is not requesting 

waiver authority for any of the core tenets of the IDEA or Section 504. . . .” Id. at 14. 

According to the report, the Department’s position was based on the following 

“principles”: 

• Schools can, and must, provide education to all students, including 

children with disabilities; 

1 “R. __” denotes a citation to the docket. 

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• The health and safety of children, students, educators, and service 

providers must be the first consideration; 

• The needs and best interests of the individual student, not any system, 

should guide decisions and expenditures; 

• Parents or recipients of services must be informed of, and involved in, 

decisions relating to the provision of services; and 

• Services typically provided in person may now need to be provided 

through alternative methods, requiring creative and innovative approaches. 

Id. 

On May 19, 2020—three weeks after the Secretary issued her 

recommendations—CTU filed this one-count action against the Department of 

Education, the Secretary in her official capacity, and the Board of Education of the 

City of Chicago (the “Board”), for alleged violations of Section 706 of the 

Administrative Procedures Act (5 U.S.C. § 551, et seq.). R. 1.2 CTU asserts that the 

Secretary acted arbitrarily and capriciously when she declined to exercise her 

authority under the CARES Act to recommend waiving provisions of the IDEA and 

Section 504. According to CTU, those provisions require CTU’s members to draft 

remote learning plans for students with special education needs before the end of the 

current school year. Id. ¶¶ 1-5. 

CTU joined the Board as “an indispensable party defendant for purposes of 

2 The Court has subject matter jurisdiction in this federal-question case under 28 U.S.C. 

§ 1331 and 28 U.S.C. § 1346. Dhakal v. Sessions, 895 F.3d 532, 538 (7th Cir. 2018); Builders 

Bank v. FDIC, 846 F.3d 272, 274 (7th Cir. 2017). 

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injunctive relief.” Id. ¶ 9. CTU contends that the Board “is currently requiring what 

appear[s] to be wholesale drafting from scratch of new remote learning plans to 

replace the current existing IEP’s and Section 504 plans.” R. 10 ¶ 4. Further, 

according to CTU, “[b]oth the Secretary and the . . . Board . . . are aware or should be 

aware that the requirement to re-write all these plans in a few weeks is impossible 

to meet, but [they] have nonetheless chosen to keep in place such requirement so as 

to give themselves political and legal cover from criticism.” Id. ¶ 18. 

On May 27, 2020, CTU filed a motion for a temporary restraining order and a 

preliminary injunction. Id. On the parties’ joint motion (R. 12), the Court entered an 

agreed briefing schedule (R. 13); briefing was completed on June 9, 2020. On June 12, 

2020, the Court held a telephonic hearing at which all parties appeared and presented 

argument. R. 26. 

 CTU’s motion seeks preliminary injunctive relief that: (1) bars all defendants 

from “requiring the case managers, clinicians, and other professionals in the Chicago 

public schools . . . to draft new remote learning plans in the few weeks remaining the 

current school year”; and (2) orders the Board “to provide notice to such case 

managers, clinicians, and others including parents as soon as possible that they are 

relieved from these new and unnecessary obligations.” R. 10 ¶ 28. For the reasons 

that follow, the motion is denied. 

II. LEGAL STANDARD 

 As an equitable, interlocutory form of relief, the entry of a preliminary 

injunction “is an exercise of a very far-reaching power, never to be indulged in except 

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in a case clearly demanding it.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of 

United States of Am., Inc., 549 F.3d 1079, 1085 (7th Cir. 2008) (citation and quotation 

marks omitted); see also Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 

858 F.3d 1034, 1044 (7th Cir. 2017) (preliminary injunction “is an extraordinary 

remedy” that “is never awarded as a matter of right”). “The standards for granting a 

temporary restraining order and preliminary injunction are the same.” USA-Halal 

Chamber of Commerce, Inc. v. Best Choice Meats, Inc., 402 F. Supp. 3d 427, 433 (N.D. 

Ill. 2019) (collecting cases). 

 In determining whether to impose a preliminary injunction, a district court 

“engages in an analysis that proceeds in two distinct phases: a threshold phase and 

a balancing phase.” Girl Scouts, 549 F.3d at 1085–86. There are three requirements 

the moving party must satisfy in the threshold phase: (1) “absent a preliminary 

injunction, it will suffer irreparable harm in the interim period prior to final 

resolution of its claims”; (2) “traditional legal remedies would be inadequate”; and 

(3) “its claim has some likelihood of succeeding on the merits.” Id.

 If the moving party succeeds at the threshold phase, the Court moves to the 

balancing phase. In that phase, the Court “weighs the irreparable harm that the 

moving party would endure without the protection of the preliminary injunction 

against any irreparable harm the nonmoving party would suffer if the court were to 

grant the requested relief.” Girl Scouts, 549 F.3d at 1085–86. This requires “a sliding 

scale approach: ‘[t]he more likely the plaintiff is to win, the less heavily need the 

balance of harms weigh in his favor; the less likely he is to win, the more need it 

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weigh in his favor.’” Id. (quoting Roland Mach., 749 F.2d at 387). “Where appropriate, 

this balancing process should also encompass any effects that granting or denying 

the preliminary injunction would have on nonparties (something courts have termed 

the ‘public interest’).” Id. (quoting Ty, Inc. v. Jones Grp., Inc., 237 F.3d 891, 895 (7th 

Cir. 2001)). 

Plaintiffs seek a mandatory preliminary injunction requiring an affirmative 

act by the defendant. Because a mandatory injunction requires the Court to command 

the defendant to take a particular action, it is “cautiously viewed and sparingly 

issued.” Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (nonprecedential 

disposition) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)); 

see also W. A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958) 

(“mandatory injunctions are rarely issued and interlocutory mandatory injunctions 

are even more rarely issued, and neither except upon the clearest equitable grounds”) 

(quotation marks and citation omitted). 

III. ANALYSIS 

 In its complaint and written motion for a preliminary injunction, CTU 

maintains that the Court should require the Secretary to ask Congress for the 

authority to waive certain requirements under the IDEA and Section 504. During the 

June 12 motion hearing, however, CTU’s theory evolved slightly: CTU now appears 

to seek a declaration that federal law does not require the Board to demand that all 

IEPs be reviewed by the time the school year ends on June 22. Indeed, the urgency 

that CTU exhibits appears driven most directly by the impending end of the school 

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year—and this suggests that CTU might settle for an advisory order telling the 

parties how this Court reads the applicable rules. 

 Under any construction of CTU’s prayer for relief, a preliminary injunction is 

unwarranted. Bluntly put, CTU’s likelihood of success on the merits is too low to pass 

the threshold for relief. Several infirmities are apparent: (1) CTU likely lacks 

standing to proceed in federal court; (2) the decision of the Secretary not to seek 

additional waiver authority is beyond the power of this Court to countermand; and 

(3) CTU has not pleaded a viable standalone claim against the Board. Because CTU 

has not shown some likelihood of success on the merits, the Court “must deny” the 

motion for preliminary relief. Girl Scouts, 549 F.3d at 1086. 

A. CTU is Unlikely to Succeed on the Merits 

1. CTU is Unlikely to Establish Standing 

CTU brought this case on a straightforward theory: that the Secretary and the 

Department (the “Federal Defendants”) arbitrarily and capriciously “abused the 

discretion granted [them] by the CARES Act to temporarily waive” provisions 

requiring the review and revision of IEPs. R. 1 ¶ 5. In CTU’s view, the Secretary’s 

conduct has prompted the Board to require—to the detriment of teachers, students, 

and parents—the wholesale redrafting of IEPs into “Remote Learning Plans” 

(“RLPs”) during the short time left in the current school year. CTU contends that the 

Federal Defendants’ conduct irrationally refused to take advantage of their 

“authority to waive certain administrative requirements” provided by Congress “so 

as to give themselves political and legal cover from criticism.” R. 10 ¶ 18. 

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CTU’s theory, however, fails to characterize properly what Congress provided 

in the CARES Act. Although Section 3511 provided for the waiver of some regulatory 

provisions not relevant here, the “authority to waive” IEP-related rules that CTU 

says was given to the Federal Defendants does not exist. On the contrary, Section 

3511 merely directed the Secretary to provide Congress with “recommendations on 

any additional waivers . . . the Secretary believes are necessary to be enacted into law 

to provide limited flexibility to States and local educational agencies to meet the 

needs of students during the emergency. . . .” CARES Act, Div. A § 3511(d)(4). 

That Congress chose to frame the issue of regulatory flexibility as a request for 

a recommendation for possible future legislative action calls into serious doubt CTU’s 

standing to bring this action. A plaintiff who seeks to proceed in federal court must, 

of course, demonstrate “injury in fact, a causal connection between the injury and the 

defendant’s conduct, and likely redressability through a favorable decision.” 

Disability Rights Wis., Inc. v. Walworth Cty. Bd. of Supervisors, 522 F.3d 796, 802 

(7th Cir. 2008) (citations and quotation marks omitted). Meeting each of these 

factors—injury, causation, and redressability—is mandatory. Id. As explained below, 

the Court has doubts about CTU’s likelihood of success in meeting these three 

requirements. 

 a. Redressability 

Turning first to redressability, the Supreme Court has explained that the 

inquiry focuses on whether it is “likely,” not just “speculative,” that the alleged harm 

“will be redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 

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555, 561 (1992). A plaintiff “bear[s] the burden of establishing standing, and each 

element, including redressability, must be supported by more than unadorned 

speculation.” Plotkin v. Ryan, 239 F.3d 882, 885 (7th Cir. 2001). 

At this preliminary stage, CTU has failed to establish that an order of any sort 

that the Court might issue would likely redress CTU’s alleged harm. If anything, 

CTU’s pleadings and arguments establish a lack of redressability. Section 3511 

unequivocally shows that Congress reserved to itself whether to enact into law any 

additional waivers under the IDEA or Rehabilitation Act. All that Congress directed 

the Secretary to do was to provide her “recommendations on any additional waivers” 

that she “believes are necessary to be enacted into law. . . .” CARES Act, Div. A 

§ 3511(d)(4). It is impossible to draw from this language any reasonable inference 

that Section 3511 provided the Secretary with the independent authority to waive 

binding law. 

Nor can relief be found in an order compelling the Secretary to make a 

recommendation to Congress to provide additional waiver authority. Congress is a 

coordinate branch of government vested with “all legislative Powers”—that is, the 

power to draft positive laws. See Gundy v. United States, — U.S. —, 139 S. Ct. 2116, 

2123 (2019). Congress may, in its sole discretion, obtain “the assistance of its 

coordinate Branches” in fulfilling its duties. Id. (quoting Mistretta v. United States, 

488 U.S. 361, 372 (1989)). But inviting a suggestion is a far piece from affirmatively 

acting on that suggestion. Indeed, Congress could react to a suggestion by the 

Secretary for additional waiver authority in any number of ways, including by 

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(1) writing legislation that grants additional waiver authority; (2) affirmatively 

refusing to grant additional authority; (3) granting waiver authority short of what 

CTU prefers; or (4) completely ignoring the Secretary’s suggestion. 

Similar unpredictability would obtain even if Congress were disposed to grant 

a request from the Secretary for waiver authority. There is no way for the Court to 

predict whether Congress would, or even could, act before the end of the CPS school 

year, or even before the end of the COVID-19 emergency; whether the President 

would sign or veto the legislation; or whether any veto would be overridden. In short, 

these considerations, which merely reflect an acknowledgment both of the plain 

language of Section 3511 and the manner in which any further legislative waivers 

must be created, make it wholly speculative that CTU’s requested relief would 

provide redress for its grievance. See Plotkin, 239 F.3d at 885. Accordingly, the Court 

finds that Plaintiff will likely fail the meet the redressability requirement of the test 

for standing. 

 b. Causation 

In addition to the question of redressability, the Court doubts that Plaintiff can 

show a “causal connection between the injury” and the Federal Defendants’ conduct. 

Disability Rights Wis., Inc., 522 F.3d at 802; Duberry v. District of Columbia, 924 F.3d 

570, 581 (D.C. Cir. 2019) (causation and redressability “are closely related[,] like two 

sides of a coin”) (citation and quotation marks omitted). To begin, the independent 

actions vel non of Congress and the Board interrupt the causal chain between CTU’s 

asserted injury and the actions of the Federal Defendants. As explained above, 

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Congress is not obligated to do anything even if the Secretary makes a 

recommendation for further waiver authority. And as the Federal Defendants argue, 

nothing precludes Congress from granting additional waiver authority at its own 

instance. This lack of clarity in predicting how Congress might act presents a 

significant break in the causal chain between CTU’s injury and the lack of a 

recommendation for waiver authority. See Doe v. Holcomb, 883 F.3d 971, 979 (7th 

Cir. 2018) (plaintiff failed to show causation where a county clerk lacked the power 

to grant or deny a name-change petition). Because the Federal Defendants lack this 

power, CTU’s asserted injury is not “fairly traceable” to the complained-of conduct (or 

lack of it) by the Federal Defendants. See id. 

By the same token, the conduct of the Board is an intervening event that 

(arguably) also breaks the chain of causation. Dep’t of Commerce v. New York, — U.S. 

—, 139 S. Ct. 2551, 2566 (2019) (noting the Court’s “steady refusal to endorse 

standing theories that rest on speculation about the decisions of independent actors”) 

(quotation omitted). As the Federal Defendants explain, administration of the IDEA 

involves a complex balance between federal, state, and local conduct. States play a 

significant role in ensuring that “local educational agencies” such as the Chicago 

Public Schools comply with the IDEA, e.g. 20 U.S.C. § 1416(a)(1)(C), and if a state 

identifies noncompliance by a school district, the state must ensure correction as soon 

as possible—but at least within one year. See 34 C.F.R. § 300.600(e). Parents also 

play a role in the enforcement of the IDEA, by challenging a school district’s actions 

through, first, a due process complaint in a state administrative hearing system, and 

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second, if necessary, by filing a federal action after exhausting their administrative 

remedies. See 20 U.S.C. § 1415(b)(6), (f), (g), (i)(2)(A). 

This statutory and administrative scheme, therefore, places at least three 

levels of operational authority between the Federal Defendants and CTU: federal to 

state; state to local; and local to employees (CTU). It is apparently undisputed that 

the deadlines and tasks of which CTU complains were communicated to CTU 

members by the Board; there is no suggestion that the Federal Defendants have 

communicated directly to CTU or its members concerning their obligations with 

respect to the redrafting of IEPs into remote learning plans. These degrees of 

separation cast further doubt on whether CTU has adequately shown causation. 

Finally, the Board likely has discretion under the IDEA to take a more 

expansive (or at least a different) view than the Federal Defendants of what is 

required under federal law. Although the parties dispute this point, the Court is 

satisfied, at least at this early stage, that the Board is not required to take a lockstep 

approach with the Federal Defendants concerning whether the IDEA requires the 

redrafting of IEPs. See, e.g., T.B. ex rel. Brenneise v. San Diego Unified Sch. Dist., 806 

F.3d 451, 468 (9th Cir. 2015). This discretion bolsters the Court’s view that any injury 

arising from the Board’s requirement to redraft IEPs is not fairly traceable to the 

conduct of the Federal Defendants. 

 c. Injury in Fact 

As to the final component of standing, the Court doubts that CTU can show it 

has suffered an injury in fact sufficient to confer standing. See Lujan, 504 U.S. at 560 

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(asserted injury must be “concrete and particularized” and “actual or imminent”). If 

one point comes across clearly from CTU’s allegations, it is that CTU believes children 

and parents are being harmed by the requirement to redraft IEPs into RLPs before 

the imminent conclusion of the school year. That allegation may or may not be correct: 

this Court lacks the institutional competence to opine on whether RLPs are “useless 

paperwork” (as CTU contends) or an important part of a child’s education (as the 

Board contends). See, e.g., United States v. Bd. of Sch. Comm’rs of City of 

Indianapolis, 128 F.3d 507, 510 (7th Cir. 1997) (“The administration of public schools 

is a state executive function rather than a federal judicial function, and so ought not 

to be subjected to the perpetual tutelage of the federal courts”); Bd. of Educ. of 

Oklahoma City Pub. Sch., Indep. Sch. Dist. No. 89, Oklahoma Cty., Okl. v. Dowell, 

498 U.S. 237, 248 (1991) (“Local control over the education of children allows citizens 

to participate in decisionmaking, and allows innovation so that school programs can 

fit local needs”). What the Court must do instead is consider whether CTU has the 

right to raise these claims in a federal court. 

Without deciding the issue conclusively at this stage, the Court doubts that 

CTU has alleged a cognizable injury. CTU has framed its case as seeking to protect 

the rights of students and parents—not, primarily, as an effort to protect the interests 

of CTU members. But in choosing this approach, CTU has engendered a genuine 

question as to whether it has the right to assert claims on behalf of those absent 

parties. See, e.g., Lawrence Twp. Bd. of Educ. v. New Jersey, 417 F.3d 368, 371 (3d 

Cir. 2005) (statutory language of the IDEA suggests “Congress intended to provide a 

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private right of action only to disabled children and their parents”); cf. Evans v. 

Kansas City, Mo. Sch. Dist., 65 F.3d 98, 101 (8th Cir. 1995) (teacher lacked standing 

to bring Title VII discrimination claims on behalf of students).3 Although the Court 

does not put much weight on the injury-in-fact component at this stage, CTU’s failure 

to make a more compelling injury argument also cuts against its likelihood of success 

on the merits. 

* * * 

As explained above, Plaintiff has failed to show some likelihood that any 

judicial order will redress CTU’s grievance. Nor has CTU shown a likelihood of 

success on its contention that the asserted injury is fairly traceable to the conduct of 

the Federal Defendants. Finally, the Court doubts that CTU will be able to 

demonstrate that it suffered a cognizable injury in its own right. 

As is obvious, the Court has phrased these findings concerning standing as 

preliminary, not final. This is for several reasons: the urgency of CTU’s request for a 

preliminary injunction, the compressed briefing schedule, that the Defendants raised 

the issue of standing by way of a pending motion to dismiss, and that the Court has 

called for additional briefing on the motion to dismiss—which all suggest to the Court 

that it would be premature to make a final decision on standing at this preliminary 

stage. See Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (the Court “has 

3 Many courts have held that teachers have standing under the Rehabilitation Act when 

they are retaliated against for advocating for disabled students. See, e.g., Reinhardt v. 

Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126 (10th Cir. 2010); Barker v. Riverside Cty. 

Office of Educ., 584 F.3d 821 (9th Cir. 2009); Molloy v. Acero Charter Sch., Inc., No. 19 C 785, 

2019 WL 5101503, at *2 (N.D. Ill. Oct. 10, 2019) (collecting cases). CTU, however, does not 

allege retaliation.

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jurisdiction to decide its jurisdiction, so it can address a motion for a preliminary 

injunction without making a conclusive decision about whether it has subject matter 

jurisdiction”). But even though these findings are preliminary, they cast serious 

doubt on CTU’s ability to obtain relief on the merits. Girl Scouts, 549 F.3d at 1086. 

 2. CTU is Unlikely to Succeed Under the APA 

 As with standing, CTU is also unlikely to succeed on the merits of its claim 

under the APA. CTU’s sole count, apparently brought against all defendants, is 

entitled “[v]iolation of Section 706 of the Administrative Procedure[s] Act.” R. 1. 

Having chosen to proceed as it has, however, CTU faces several hurdles arising from 

well-established agency defenses under the APA. 

 A plaintiff who brings a claim under the APA may challenge only “final agency 

actions.” Bennett v. Spear, 520 U.S. 154, 178, 117 S. Ct. 1154, 1169, 137 L. Ed. 2d 281 

(1997). At least at this preliminary stage, the Court doubts that CTU can succeed in 

showing that the Secretary’s refusal to seek additional waiver authority was a final 

agency action. This doubt arises principally from the effect of Dalton v. Spencer, in 

which the Supreme Court held that military base closure recommendations made by 

the Secretary of Defense were not final agency actions that could be challenged under 

the APA. 511 U.S. 462, 469-70 (1994); see also Franklin v. Massachusetts, 505 U.S. 

788, 798 (1992) (“tentative recommendation” from Secretary of Commerce to the 

President was not final agency action). In Dalton, the Supreme Court concluded that 

the recommendations were not final agency actions because (1) the President is not 

an “agency” as that term is defined by the APA; and (2) the recommendations were 

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not binding on the President, who had complete discretion to accept or reject them. 

511 U.S. at 471; see also Franklin, 505 U.S. at 798. 

 That reasoning applies equally here. Final action on any recommendation by 

the Secretary must come, if at all, from Congress. But like the President, Congress is 

not an “agency” under the APA. 5 U.S.C. § 701(b)(1)(A) (“ ‘agency’ means each 

authority of the Government of the United States, whether or not it is within or 

subject to review by another agency, but does not include—(A) the Congress”). And 

as in Dalton and Franklin, the Secretary’s recommendation here would not be binding 

on Congress. Accordingly, Dalton (which CTU has not addressed) and Franklin likely 

preclude CTU from making the required showing that the Secretary’s 

recommendation constituted reviewable final agency action. Cf. Ecology Ctr., Inc. v. 

U.S. Forest Serv., 192 F.3d 922, 925 (9th Cir. 1999) (“courts have recognized that 

agency recommendations are not reviewable as final agency actions”); Flue-Cured 

Tobacco Coop. Stabilization Corp. v. U.S.E.P.A., 313 F.3d 852, 861 (4th Cir. 2002) (“if 

we were to adopt the position that agency actions producing only pressures on third 

parties were reviewable under the APA, then almost any agency policy or publication 

issued by the government would be subject to judicial review”). 

 Even if the Secretary’s recommendation letter were a final agency action, her 

decision to include (or not include) specific waiver recommendations is likely 

committed to her discretion. Under the APA, decisions that are “committed to agency 

discretion by law” are unreviewable. 5 U.S.C. § 701(a)(2). This limitation on judicial 

review, to be sure, is “a very narrow exception” that applies only when there is “no 

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law to apply.” Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 

(1971); Dep’t of Commerce v. New York, 139 S. Ct. at 2568 (“ . . . we have read the 

§ 701(a)(2) exception for action committed to agency discretion quite narrowly, 

restricting it to those rare circumstances where the relevant statute is drawn so that 

a court would have no meaningful standard against which to judge the agency’s 

exercise of discretion”) (internal quotations omitted). To determine whether Section 

701(a)(2) applies, courts analyze the governing statutes and regulations to assess 

whether there are “judicially manageable standards . . . for judging how and when an 

agency should exercise its discretion.” Menominee Indian Tribe of Wis. v. Envtl. Prot. 

Agency, 947 F.3d 1065, 1072 (7th Cir. 2020) (quoting Heckler v. Chaney, 470 U.S. 821, 

830 (1985)). CTU bears the burden of showing that the exception does not apply. 

Heckler, 470 U.S. at 828 (“before any review at all may be had, a party must first 

clear the hurdle of § 701(a)”). 

 Section 3511 of the CARES Act, the sole relevant provision, states that the 

Secretary “shall prepare and submit a report . . . with recommendations on any 

additional waivers . . . the Secretary believes are necessary to be enacted into law to 

provide limited flexibility to States and local educational agencies to meet the needs 

of students during the emergency.” CARES Act, Div. A § 3511(d)(4). CTU calls this a 

“substantive . . . judicially manageable standard against which the Secretary’s 

actions can be measured,” R. 21 at 10, but the Court disagrees. A vague statement of 

purpose does not create a judicially manageable standard that the Court can apply.

Buntrock v. U.S. S.E.C., No. 02 C 1274, 2003 WL 260681, at *4 (N.D. Ill. Feb. 6, 2003), 

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aff'd sub nom. Buntrock v. S.E.C., 347 F.3d 995 (7th Cir. 2003) (governing rules that 

“only modestly constrain agency action . . . provide no basis by which th[e] Court can 

review the agency’s discretionary decision”); see also Matthews v. Town of Greeneville, 

932 F.2d 968 (6th Cir. 1991) (“vague admonition to maintain ‘the lowest possible 

rates’ does not come close to providing the sort of guidelines which would permit 

meaningful judicial review”); Elecs. of N. Carolina, Inc. v. Se. Power Admin., 774 F.2d 

1262, 1266 (4th Cir. 1985) (statutory requirement that agency market power for 

“most widespread use” was “too vague to provide a standard by which a court c[ould] 

review” agency’s marketing plan); Aharonian v. Gutierrez, 524 F. Supp. 2d 54, 55 

(D.D.C. 2007) (decision committed to agency discretion where “the only statutory 

standard is vague and highly subjective”). 

Because of the extremely general wording of Section 3511, and in view of the 

cases cited above, the Court finds that CTU is unlikely to succeed in convincing the 

Court that the broad language of Section 3511(d)(4) provides sufficient guidance for 

the Court to assess the Secretary’s exercise of discretion. See Jaymar-Ruby, Inc. v. 

F.T.C., 651 F.2d 506, 511 (7th Cir. 1981) (FTC’s decision to disclose investigative file 

to state attorneys-general was committed to agency discretion where, “[o]ther than 

requiring that such information be maintained in confidence and be used only for 

official law enforcement purposes, the statute is silent on what factors should be 

considered by the Commission in reaching its decision”); Singh v. Moyer, 867 F.2d 

1035, 1037 (7th Cir. 1989) (decision not to waive foreign residency requirement 

committed to agency discretion); Muscogee (Creek) Nation Div. of Hous. v. U.S. Dep’t 

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of Hous. & Urban Dev., 698 F.3d 1276, 1281 (10th Cir. 2012) (statutory restriction on 

agency discretion was too broad to support judicial review “unless the agency action 

can be considered irreconcilable with this statutory mandate”) (quotations omitted). 

 At bottom, the Secretary’s recommendations required “a complicated balancing 

of a number of factors which are peculiarly within [her] expertise.” Heckler, 470 U.S. 

at 831. This is, therefore, the type of situation where “[t]he agency is far better 

equipped than the courts to deal with the many variables involved in the proper 

ordering of its priorities.” Id. at 831–32.4 CTU does not cite, and the Court is not 

aware of, any case where an agency was found to have abused its discretion by failing 

to ask Congress for the power to waive existing statutory mandates. And it is unlikely 

that CTU could develop a record here such that the Court would be inclined to break 

new ground. For these reasons, CTU has not shown some likelihood of success on the 

merits. Girl Scouts, 549 F.3d at 1085–86. 

 3. CTU is Unlikely to Succeed Against the Board 

 CTU is also unlikely to succeed in its claim against the Board. To begin, the 

Court is unsure what claim is presented against the Board. CTU contends that the 

4 Although not raised by the parties, and accordingly not central to this ruling, the 

political question doctrine is relevant to the Court’s concerns about its competence to judge 

the Secretary’s actions. Under that doctrine, there exist two types of questions not subject to 

judicial resolution: (1) those where “the relevant considerations are beyond the courts’ 

capacity to gather and weigh”; and (2) those that “have been committed by the Constitution 

to the exclusive, unreviewable discretion of the executive and/or legislative—the so-called 

‘political’—branches of the federal government.” Miami Nation of Indians of Indiana, Inc. v. 

U.S. Dep’t of the Interior, 255 F.3d 342, 347 (7th Cir. 2001) (internal citations omitted). There 

is little doubt in the Court’s mind that the question of what policies are needed to address 

the COVID-19 crisis is inherently committed by the Constitution to the legislative and 

executive functions. 

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Board is an “indispensable party” under Rule 19 of the Federal Rules of Civil 

Procedure, but the indispensableness of the Board to this case is not readily apparent. 

Rule 19 “requires the court to determine whether a party is indispensable.” Wade v. 

Hopper, 993 F.2d 1246, 1249 (7th Cir. 1993) (citing Provident Tradesmens Bank & 

Trust Co. v. Patterson, 390 U.S. 102, 118–19 (1968)). The test for an indispensable 

party “is whether justice cannot be done unless [the party] is joined.” Id. (quotation 

omitted). It is the party advocating for joinder that “generally has the initial burden 

to establish the absent person’s interest.” In re Veluchamy, 879 F.3d 808, 819 n.4 (7th 

Cir. 2018). 

CTU contends in conclusory fashion that the Board is indispensable, but CTU 

has neither explained the basis for joining the Board nor cited any rule or other 

authority that requires joinder. CTU has, therefore, failed to show that joinder is 

required. Wade, 993 F.2d at 1249 (“Simply quoting Rule 19’s language is 

inadequate”). 

Even assuming the Board is a necessary party, CTU’s complaint contains only 

a single count brought under the APA. That count does not address the Board’s 

conduct, and it does not purport to allege that the Board is susceptible to relief under 

the APA. Neither does the single count of the complaint purport to state a cause of 

action under the CARES Act, the IDEA, or the Rehabilitation Act. Accordingly, the 

Court questions whether it could even issue an injunction in the absence of a stated 

claim directed to the Board’s conduct. 

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More pertinently, given that the cause of action is pleaded under the APA, CTU 

has little likelihood of success against the Board. As a threshold (and likely 

determinative) matter, the Board is not an “agency” under APA. 5 U.S.C. § 701 

(“ ‘agency’ means each authority of the Government of the United States. . . .”). CTU 

has also not shown, nor even clearly alleged, that the Board wrongly interpreted the 

IDEA or Section 504. Such a claim would, in any event, run counter to CTU’s pleaded 

theory, which is that a waiver of the IDEA is needed to relieve CTU from the IDEA’s 

regulatory burden. If a waiver was not imperative, it would be unnecessary to coerce 

the Secretary into seeking a waiver from Congress. 

 Though mindful not to distort CTU’s complaint, the Court tends to agree with 

the Federal Defendants’ characterization of this dispute as fundamentally an 

“employer-employee dispute.” (R. 20 at 13.) It may be that CTU’s grievances are more 

accurately viewed as relating to its members’ terms and conditions of employment, 

and it may be that CTU believes the Board is violating its members’ rights under 

their collective employment agreement. Perhaps recognizing that such a claim could 

likely not be brought in federal court, CTU has not alleged any employment-related 

violation, and the Court must constrain itself to the pleadings and documents CTU 

has filed. But it remains that CTU has not identified the basis of its claim against the 

Board. 

A final point concerning the claim against the Board: during the June 12 

motion hearing, counsel for CTU urged the Court to issue, in effect, a declaratory 

judgment to “clarify” the requirements of the IDEA regarding whether and when 

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IEPs must be revised to account for remote learning. Such a ruling might help resolve 

the parties’ dispute, to be sure, but the Court does not believe it has the power to 

issue a declaratory judgment under these circumstances. To begin, this case was not 

brought as a declaratory judgment action under 28 U.S.C. § 2201; it was brought 

principally under the APA. For this reason alone, the Court is reluctant to offer an 

abstract opinion on the requirements of the IDEA. 

Perhaps more importantly, CTU has not identified a claim against the Board

that arises under federal law. CTU might contend that its defense to the Board’s 

requirements concerning IEP revisions arises under federal law (namely, the IDEA 

and Section 504), but that is insufficient to confer jurisdiction. As the Seventh Circuit 

has explained, to determine whether federal jurisdiction exists over a request for a 

declaratory judgment, the Court “must dig below the surface of the complaint and 

look at the underlying controversy. If a well-pleaded complaint by the defendant (the 

‘natural’ plaintiff) would have arisen under federal law, then the court has 

jurisdiction when the ‘natural’ defendant brings a declaratory-judgment suit.” 

NewPage Wis. Sys. Inc. v. United Steel, Paper & Forestry, 651 F.3d 775, 777–78 (7th 

Cir. 2011). 

Digging below the surface, the Court cannot discern a likely federal claim by 

the Board. Presumably the Board, acting as a “natural plaintiff,” could bring a statelaw contract claim if CTU members failed to complete the IEP revisions; and CTU 

might then assert a defense that the Board misunderstands the IDEA and Section 

504. But that would not constitute a well-pleaded complaint, for a federal defense to 

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a claim does not confer jurisdiction. Wis. Interscholastic Athletic Ass’n v. Gannett Co., 

Inc., 658 F.3d 614, 619 (7th Cir. 2011). Accordingly, the Court cannot issue what 

would amount to an advisory opinion on the federal requirements for IEPs. See

Deveraux v. City of Chicago, 414 F.3d 328, 331 (7th Cir. 1994) (affirming dismissal of 

declaratory judgment action and explaining that “Article III prohibits federal courts 

from issuing advisory opinions”). 

CTU has not, of course, brought an action for a declaratory judgment; this 

discussion thus serves only to reinforce that CTU has little likelihood of success 

against the Board. To reiterate, CTU has not pleaded an identifiable, standalone 

claim against the Board. To the extent that it has, CTU is unlikely to succeed because 

the APA does not apply to the Board. Finally, the Court assumes that it lacks 

jurisdiction to issue a declaration concerning the effect of the IDEA and Section 504 

on the revision of IEPs. 

B. Other Factors Relevant to Injunctive Relief 

It is with the likelihood of success analysis that the resolution of this motion 

effectively begins and ends. In the interest of completeness, however, the Court 

briefly addresses the other factors relevant to whether preliminary injunctive relief 

is warranted. 

At the threshold stage, in addition to some likelihood of success, CTU must 

also show that it will suffer irreparable harm before final resolution of its claims and 

that traditional legal remedies would be inadequate. Girl Scouts, 549 F.3d at 1085–

86. With only a few days remaining before the end of the school year, it is doubtful 

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that CTU can make any meaningful showing of irreparable harm. In addition, 

because CTU purports to bring this action principally for the benefit of students and 

parents, it is doubtful that the CTU members’ injuries, which likely relate to the 

terms and conditions of their employment, are irreparable through the application of 

traditional legal remedies. See id. Despite these doubts, however, the Court will 

assume for purposes of this order that CTU has made an adequate showing of 

irreparable harm and lack of an adequate remedy. 

Having determined that CTU has failed to demonstrate some likelihood of 

success, the Court “must deny the injunction.” Girl Scouts, 549 F.3d at 1086 (“If the 

court determines that the moving party has failed to demonstrate any one of these 

three threshold requirements, it must deny the injunction”). As a result, the Court 

need not “proceed[] to the balancing phase of the analysis.” See id. 

But again in the interest of completeness, the Court will briefly address the 

second-stage factors. These include a balancing of the parties’ respective harms and, 

where appropriate, a consideration of “any effects that granting or denying the 

preliminary injunction would have on nonparties (something courts have termed the 

‘public interest’).” Id. at 1085-86 (citation and quotation marks omitted). 

In short, the Court finds that the balance of harms does not tip so strongly in 

favor of CTU as to justify an injunction. In making this finding, the Court has 

employed the “sliding scale” approach that takes into consideration the relative 

merits of the case. Id. (citation and quotation marks omitted). Because of the 

surpassingly low likelihood that CTU will succeed on the merits, CTU must make a 

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compelling argument concerning the balance of harms. But as explained above, any 

harm suffered by CTU’s members likely could be remedied adequately through 

damages or prospective injunctive relief. Stated differently, the potential harm to 

CTU if an injunction is not entered is not so great as to, by itself, make up for the 

serious weaknesses inherent in CTU’s case. 

Conversely, there is potential harm to the Board and the Federal Defendants 

if an injunction is entered. An order directing the Board to cease requiring the 

revision of IEPs or directing the Secretary to ask Congress for a waiver she has 

already rejected would amount to a significant judicial intrusion into the workings of 

two separate governmental entities. Cf. Missouri v. Jenkins, 515 U.S. 70, 99 (1995) 

(“[O]ur cases recognize that local autonomy of school districts is a vital national 

tradition”) (citations omitted). In the light of the weakness in CTU’s case, the Court 

is not inclined to take that step. See Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429, 

1436 (7th Cir. 1986) (the Court must exercise its discretion “to arrive at a decision 

based on a subjective evaluation of the import of the various factors and a personal, 

intuitive sense about the nature of the case”). Accordingly, to the extent that the 

second-stage balancing test is required, the Court finds that an injunction is not 

warranted. 

IV. CONCLUSION 

Like a thief in the night, the novel coronavirus has crept upon our Nation and 

wreaked widespread havoc. It is beyond dispute that this crisis has generated 

significant challenges for all; for many, the results have been tragic. Virtually every 

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aspect of life has been and continues to be affected. As with all crises, however, 

selflessness has abounded. Health care workers, first responders, and many others 

have given greatly of themselves, often at significant personal risk, to ensure that the 

sick are treated, the public is protected, and essential services are provided. It is 

altogether fitting that these public servants have been widely and publicly 

recognized. 

But not all public servants are quite so visible or recognized quite so publicly, 

even though their work is critically important too. CTU’s members—the case 

managers, teachers, clinicians, and others who provide daily instruction to children 

with special education needs—are striving to meet the challenges of providing 

instruction under unique and trying circumstances. Along with the parents and 

guardians of their young charges, these public servants are the boots on the ground, 

so to speak, in the effort to ensure that our more vulnerable students continue to 

receive the education to which they are entitled. They too deserve the recognition—

and gratitude—of society. That the Court is unable to grant the relief their 

representatives seek should be read neither to discredit their substantive views on 

remote learning nor to call into question their manifest dedication to duty. 

As explained above, however, this action suffers from legal deficiencies that 

preclude preliminary injunctive relief. CTU’s motion for a temporary restraining 

order and preliminary injunction is therefore denied. 

SO ORDERED. 

Date: June 19, 2020 

 JOHN F. KNESS 

 United States District Judge 

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