Passut v. Cardona

540 F.Supp.3d 27

Mark PASSUT, et al., Plaintiffs,

v.Miguel CARDONA, in his official capacity as the Secretary of the United States Department of Education,¹ et al., Defendants.

Civil Action No. 19-1606 (RBW)

United States District Court, District of Columbia.

Signed May 21, 2021

Jeffrey B. Dubner, John T. Lewis, III, Democracy Forward Foundation, Alexander S. Elson, Eric Rothschild, National Student Legal Defense Network, Washington, DC, for Plaintiffs.

Bradley Thomas Craigmyle, U.S. Department of Justice, Washington, DC, for Defendants Betsy Devos, U.S. Department of Education.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

Mark Passut and Mark Kaiser, the named plaintiffs in this case, bring this putative class action against the defendants, the United States Department of Education (the "Department") and Miguel Cardona, in his official capacity as the Secretary of the Department (the "Secretary"), seeking declaratory and injunctive relief under the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 – 706. See Amended Complaint for Declaratory and Injunctive Relief ("Am. Compl.") ¶¶ 1–4, ECF No. 14. The plaintiffs challenge an April 3, 2018 order by the Secretary that rendered null and void a December 12, 2016 decision (the "December 2016 decision") revoking the recognition of the Accrediting Council for Independent Colleges and Schools (the "Accrediting Council" or "ACICS") as an accrediting agency for postsecondary education institutions, including the plaintiffs’ former school, the defunct Virginia College. See id. Currently pending before the Court are the Defendants’ Motion to Dismiss ("Defs.’ Mot."), ECF No. 16, and the Plaintiffs’ Motion for Class Certification and Supporting Memorandum ("Pls.’ Mot." or the "plaintiffs’ motion for class certification"), ECF No. 2. Upon careful consideration of the parties’ submissions,² the Court concludes for the following reasons that it must grant in part and deny as moot in part the defendants’ motion to dismiss and deny as moot the plaintiffs’ motion for class certification.³

I. BACKGROUND

The Court previously described the relevant statutory and regulatory framework and factual background of much of this case in detail, see Accrediting Council for Indep. Colls. & Schs. v. DeVos, 303 F. Supp. 3d 77, 86–93 (D.D.C. 2018) (Walton, J.), and therefore will not reiterate that information in full again here. The Court, however, provides the following procedural posture, which is pertinent to its resolution of the pending motions in this case.

A. Accrediting Council for Independent Colleges & Schools v. DeVos

On December 15, 2016, the Accrediting Council initiated an action against the Department pursuant to the APA, challenging the decision of the Secretary to deny the Accrediting Council's petition for continued recognition (the "Accrediting Council's January 2016 Petition") and revoke the Accrediting Council's recognition as an "accrediting agency" for certain institutions of higher education. See id. at 85. Although this Court rejected the Accrediting Council's argument that the Secretary violated the APA by failing to discuss all of the criteria to which the Accrediting Council had been found noncompliant, see id. at 122, the Court nevertheless concluded that the Secretary had violated the APA by "failing to consider [certain information provided by the Accrediting Council in support of its petition for continued recognition (the "Accrediting Council's Part II response")]," id. at 122–23. Accordingly, "[b]ecause the [Act] requires the Secretary to consider an application de novo," id. at 122 ; see 20 U.S.C. § 1099b(n)(1) ("The Secretary shall conduct an independent evaluation of the information provided by [the accrediting agency] ...."), the Court "[found] it appropriate to remand the case to the Secretary for proceedings consistent with [its] opinion[,]" Accrediting Council, 303 F. Supp. 3d at 122. The Court noted that it was "unable to conclude that no part of the 36,000-page [Part II response] submissions [not considered by the Secretary] would have affected the Secretary's determination that the Accrediting Council could not come into compliance within twelve months[,]" and that the "submission contained relevant information that was indisputably relevant to assessing those violations." Id. at 107. Therefore, the Court "remand[ed the] case to the Secretary for consideration of this evidence." Id. at 123.

B. The Secretary's April 2018 Order

On April 3, 2018, the Secretary issued an order setting forth the Department's procedures on remand from this Court ("the Secretary's April 2018 Order"). See Order at 1–2, Accrediting Council for Ind. Colls. & Schs., U.S. Dep't of Educ., No. 16-44-O, at 2 (Apr. 3, 2018), https://www2.ed.gov/documents/press-releases/acics-docketno-16-44-0.pdf. The Secretary stated that "[a]s a result of [ ] [this C]ourt's remand, there is no final decision on the recognition petition that [the Accrediting Council had] submitted to the Department[.]" Id. at 1. Therefore, the Secretary concluded that "[the Accrediting Council's] status as a federally recognized accrediting agency is restored effective as of December 12, 2016" and "[p]ursuant to 34 C.F.R. § 602.37(h), [the Accrediting Council] will remain in that status until such time as [the Secretary] reach[es] a final decision on [the Accrediting Council's] January 2016 petition." Id. The Secretary further stated that "[c]onsistent with th[is C]ourt's remand, [the Secretary would] conduct a further review of [the Accrediting Council's] petition." Id. The Secretary ordered that "[the Accrediting Council] may respond to [this Court's Memorandum Opinion] in writing" and "should explain whether and to what extent the Part II submission documents are relevant to its compliance with the regulatory criteria or its ability to come into compliance within [twelve] months." Id. at 2. The Secretary further directed a "[s]enior [d]epartment [o]fficial [to] respond in writing to [the Accrediting Council's] submission[.]" Id.

C. The Secretary's Reconsideration of the Accrediting Council's January 2016 Petition

On September 28, 2018, the Department's Principal Deputy Under Secretary, Diane Auer Jones ("the Deputy Under Secretary"), submitted her renewed recommendation to the Secretary. See Senior Department Official's Response to ACICS at 1, Accrediting Council for Ind. Colls. & Schs., U.S. Dep't of Educ., No. 16-44-O (Sept. 28, 2018), https://www2.ed.gov/about/offices/list/ope/sdoresponsetoacics92818.pdf. The Deputy Under Secretary recommended to the Secretary "that [the Accrediting Council] be granted continued recognition with the condition that it submits a compliance report within [twelve] months demonstrating full compliance with 34 C[.]F[.]R[.] §§ 602.15(a)(2) and (a)(6)." Id. at 76; see also Am. Compl. ¶ 63 (representing that "[o]n September 28, 2018, Jones[, the Department official who was assigned to review the Accrediting Council's 2016 petition,] recommended that [the] Secretary [ ] grant [the Accrediting Council twelve] months of continued recognition to come into full compliance").⁴

On November 21, 2018, the Secretary agreed with the Deputy Under Secretary's recommendation and "f[ou]nd [the Accrediting Council] noncompliant with §§ 602.15(a)(2) and 602.15(a)(6) [,]" but "compliant with the remaining [nineteen] criteria subject to additional reporting requirements detailed in [the Secretary's] analysis." Accrediting Council for Ind. Colls. & Schs., U.S. Dep't of Educ., No. 16-44-O, at 8 (Nov. 21, 2018), https://www2.ed.gov/about/offices/list/ope/final-agency-decision-acics-november-2018.pdf; see also Am. Compl. ¶ 67. The Secretary therefore "grant[ed the Accrediting Council] continued recognition with the condition that it submit compliance reports within [twelve] months demonstrating full compliance" with §§ 602.15(a)(2) and 602.15(a)(6). Accrediting Council for Ind. Colls. & Schs., U.S. Dep't of Educ., No. 16-44-O, at 8 (Nov. 21, 2018), https://www2.ed.gov/about/offices/list/ope/final-agency-decision-acics-november-2018.pdf; see also Am. Compl. ¶ 67.

D. The Accrediting Council's Review of Virginia College's Accreditation

The plaintiffs allege that they "attended Virginia College, one of [the Educational Corporation of America's ("Educational Corporation")] schools, [located] in Richmond[, Virginia]." Id. ¶ 78. According to the plaintiffs, "Virginia College was not able to earn accreditation from any [other accrediting agency] besides [the Accrediting Council]." Id. ¶ 80. The plaintiffs assert that although "Virginia College and many other [Educational Corporation] schools sought accreditation from the Accrediting Council for Continuing Education [and] Training ([‘]ACCET[’])" after the Secretary denied the Accrediting Council's January 2016 petition, ACCET "denied accreditation to Virginia College on May 1, 2018, [and] reaffirm[ed] that denial on August 31, [2018,] after [its] appeals panel found that Virginia College failed to meet nineteen of [its] institutional standards." Id.

According to the plaintiffs, after the Secretary's April 2018 Order, although "[the Accrediting Council] reviewed the findings by ACCET [concluding that Virginia College did not meet ACCET's institutional standards], [it] did not follow ACCET in refusing to accredit Virginia College at that time." Id. ¶ 81. The plaintiffs assert that "[i]nstead, [the Accrediting Council] issued a directive to show cause why Virginia College's accreditation should not be withdrawn by suspension at [the Accrediting Council's] August 2018 meeting." Id. The plaintiffs further allege that "[a]fter that meeting, [the Accrediting Council] again extended Virginia College's show-cause directive, thereby continuing [Virginia College's] accreditation." Id.

E. The Fall 2018 Term

The plaintiffs allege that the Secretary's April 2018 Order and the Accrediting Council's decisions to "issu[e] a directive to show cause" to Virginia...