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CENTER FOR LAW AND EDUC. v. U.S. DEPT. OF EDUC.

May 22, 2002

CENTER FOR LAW AND EDUCATION, ET AL., PLAINTIFFS,
V.
UNITED STATES DEPARTMENT OF EDUCATION, DEFENDANT.



The opinion of the court was delivered by: Bates, District Judge.

MEMORANDUM OPINION

The Center for Law and Education, Designs for Change, National Coalition for the Homeless, the National Law Center on Homelessness and Poverty, and Rachelle Lindsey (collectively, "plaintiffs") bring this action against the United States Department of Education ("Education" or "defendant") to invalidate Education's selection of participants in a negotiated rulemaking process under the No Child Left Behind Act of 2001, Pub.L. No. 107-110, 115 Stat. 1425 (2002) ("NCLBA"). Presently before the Court are plaintiffs' motion for a preliminary injunction and defendant's motion to dismiss. For the reasons stated below, plaintiffs' motion for a preliminary injunction is denied and defendant's motion to dismiss is granted.

FACTUAL AND PROCEDURAL BACKGROUND

Four of the plaintiffs are non-profit agencies that purport to represent parents and students with respect to their interests in the negotiated rulemaking process under the NCLBA. See Amended Compl. ¶¶ 7-10. The fifth plaintiff, Rachelle Lindsey, is a parent of a public school child.*fn1 See id. ¶ 11. Education is charged with administering the NCLBA.

The NCLBA, which was signed into law in January 2002, provides support for education programs designed to help disadvantaged children meet high academic standards. Section 1901 of the NCLBA empowers the Secretary of Education (the "Secretary") to issue regulations under Title I of the Elementary and Secondary Act of 1965, which was amended by the NCLBA. Section 1901(b) of the NCLBA, entitled "Negotiated Rulemaking Process," lays out specific procedures for the Secretary to follow in developing and promulgating the regulations. First, the Secretary is required to "obtain the advice and recommendations of representatives of Federal, State, and local administrators, parents, teachers, paraprofessionals, members of local school boards and other organizations involved with the implementation and operation of programs under [Title I]." NCLBA § 1901(b)(1). After obtaining this advice, but before publishing proposed regulations, the Secretary must:

(A) establish a negotiated rulemaking process on, at a minimum, standards and assessments;
(B) select individuals to participate in such process from among individuals or groups that provided advice and recommendations, including representation from all geographic regions of the United States, in such numbers as will provide an equitable balance between representatives of parents and students and representatives of educators and education officials; and
(C) prepare a draft of proposed policy options that shall be provided to the individuals selected by the Secretary under subparagraph (B) not less than 15 days before the first meeting under such process.

Id. § 1901(b)(3). Section 1901(b)(4) specifies that:

[s]uch process . . . (B) shall not be subject to the Federal Advisory Committee Act, but shall otherwise follow the provisions of the Negotiated Rulemaking Act of 1990 (5 U.S.C. § 561 et seq.).

Section 1901(b) also provides that during an "emergency situation" in which regulations must be issued within a very limited time, the Secretary may issue proposed regulations without following the negotiated rulemaking procedures. See id. § 1901(b)(5).

In general, final regulations under the NCLBA must be issued within 1 year of the date of the enactment of the NCLBA. See id. § 1901(b)(4)(A). Regulations for Sections 1111 and 1116 of the NCLBA, however, must be issued within 6 months of enactment. See id. § 1908.

Ten days after the NCLBA was signed into law, Education published in the Federal Register a notice soliciting "advice and recommendations from interested parties," and describing the negotiated rulemaking process required by the NCLBA. Request for Advice and Recommendations on Regulatory Issues, 67 Fed. Reg. 2770 (January 18, 2002). The notice specified that Education would select individuals to participate in the negotiated rulemaking process from among the individuals or groups providing advice. See 67 Fed. Reg. at 2771. On February 28, 2002, Education published a notice with the names of selectees for a negotiated rulemaking committee concerning "standards and assessments." See Notice of Meetings to Conduct a Negotiated Rulemaking Process, 67 Fed. Reg. 9223, 9223-24 (February 28, 2002). Five committee meetings were scheduled for the middle of March. See id. As set forth in the notice, the selectees included: six representatives of state administrators and state boards of election; four representatives of local administrators and local school boards; three representatives of principals and teachers; one representative of business interests; two representatives from Education; and seven individuals "Representing students (Including At-risk Students, Migrant Students, Limited English-Proficient Students, Students with Disabilities, and Private School Students)." Id. at 9224.*fn2 Of the seven individuals set forth as representatives of students, two were described in the notice as "parent[s]," one was identified as a "teacher," and four appeared to be state or local education officials. See id.

During the second of two conference calls with the parties on March 8, 2002, this Court issued an oral ruling denying plaintiffs' motion for a temporary restraining order. The Court cited concern about its jurisdiction to hear plaintiffs' action, and noted specifically that the NCLBA (through its adoption of the Negotiated Rulemaking Act) appears to shield the negotiated rulemaking process from judicial review. An expedited briefing schedule for resolving plaintiffs' motion for a preliminary injunction was agreed to by the parties and ordered by the Court.

In their motion for a preliminary injunction, plaintiffs expand on the arguments made in their motion for a temporary restraining order. Plaintiffs assert that the NCLBA provides the representatives of parents and students with an express right to participate on the committee in an "equitable balance" with the representatives of educators and education officials. Plaintiffs cite the House Conference Report in support of their position that, to achieve a real equitable balance, the representatives of program beneficiaries (i.e., parents and students) should actually be the majority of the committee:

The Conferees intend that the Secretary select individuals to participate in the Title I negotiated rulemaking in numbers that will provide an equitable balance between representatives of parents and students and representatives of educators and education officials. The Conferees do not intend this language to require strict numerical equality or comparability among these representatives. Rather, the Conferees intend the Secretary to have flexibility in selecting the conferees, while ensuring that the views of both program beneficiaries and program providers are fairly heard and considered.

H.R.Conf.Rep. No. 107-334, at 809 (2001). Plaintiffs additionally argue that the present committee is imbalanced with respect to expertise because the two parents selected for the committee lack the experience and technical knowledge possessed by the educators and education officials. What is required, plaintiffs argue, is the participation of non-governmental organizations with relevant expertise.*fn3

Plaintiffs seek a preliminary injunction enjoining the negotiated rulemaking process until a new committee is appointed and prohibiting Education from using any proposed rules approved by the existing committee. See Amended Compl. at ¶¶ 2 — 3, pp. 11-12. Plaintiffs assert that, without a preliminary injunction, they will be harmed by the on-going injury to their right of participation, and that parents and students will be harmed by the risk of a final regulation that fails to account for their interests.

ANALYSIS

I. Motion to Dismiss

Defendant moves for dismissal on several bases. First, defendant argues that plaintiffs' action is barred by Section 1901(b)(4)(B), which incorporates a prohibition on judicial review contained in Section 570 of the Negotiated Rulemaking Act of 1990, 5 U.S.C. § 561, et seq. ("NRA"). See 5 U.S.C. § 570. Second, defendant argues that the establishment of the negotiated rulemaking committee is not a final agency action that is subject to judicial review under the APA. Third, defendant argues that plaintiffs lack standing to pursue this action because they have suffered no injury-in-fact.

The Court finds that both the incorporation of Section 570 of the NRA and the absence of a final agency action provide threshold jurisdictional grounds for dismissal. Accordingly, the Court need not reach defendants standing argument.*fn4

A. Bar on Judicial Review

Section 1901(b)(4) of the NCLBA provides:

Process — Such process . . . (B) shall not be subject to the Federal Advisory Committee Act, but shall otherwise follow the provisions of the Negotiated Rulemaking Act of 1990 (5 U.S.C. § 561, et seq.).

The NRA, in turn, provides in its Section 570 that "[a]ny agency action relating to establishing, assisting, or terminating a negotiated rulemaking committee under this subchapter shall not be subject to judicial review." 5 U.S.C. ยง 570. Accordingly, defendant argues, plaintiffs' claim must be dismissed because the NCLBA, by incorporating ...


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