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Accrediting Council For Independent Colleges and Schools v. Devos

United States District Court, District of Columbia

March 23, 2018

BETSY DEVOS, [1] in her official capacity as Secretary of the United States Department of Education, and the UNITED STATES DEPARTMENT OF EDUCATION, Defendants.



         The plaintiff, the Accrediting Council for Independent Colleges and Schools (the “Accrediting Council”), [2] brings this civil action under the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 701-706 (2012), challenging the decision of the Secretary of the United States Department of Education (the “Department”) to revoke the Accrediting Council's recognition as an “accrediting agency” for certain institutions of higher education. See Complaint (“Compl.”) ¶¶ 1, 6, 37-42. Currently before the Court are the parties' cross-motions for summary judgment. See generally Plaintiff's Motion for Summary Judgment (“Pl.'s Mot.”); Defendants' Cross[-]Motion for Summary Judgment (“Defs.' Cross-Mot.”). Upon careful consideration of the parties' submissions, [3] the Court will grant in part and deny in part the Accrediting Council's motion, deny the defendants' motion, and remand this case for further proceedings consistent with this memorandum opinion.

         I. BACKGROUND

         A. Statutory and Regulatory Framework

         Title IV of the Higher Education Act of 1965 (“HEA”) “provides billions of dollars [every year] through loan and grant programs to help students pay tuition for their postsecondary education.” Ass'n of Private Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 433 (D.C. Cir. 2012); see also 20 U.S.C. § 1070 (2012) (stating that the purpose of the Act is to “assist in making available the benefits of postsecondary education to eligible students . . . in institutions of higher education by” “providing Federal Pell Grants . . . [, ] supplemental educational opportunity grants . . . [, and] payments to the States to assist them in making financial aid available”). To participate in these programs, an institution of higher education must have certain qualifications, including the requirement that it must be accredited by a nationally recognized accrediting agency or association. See 20 U.S.C. § 1002(a) (incorporating 20 U.S.C. § 1001(a)(5)); see also id. § 1099c.

         The Secretary of the Department (the “Secretary”) determines which accrediting agencies are nationally recognized for the purposes of the HEA. See id. § 1099b; see also 34 C.F.R. § 602.1 (2016). To be recognized, an accrediting agency must satisfy certain criteria designated by the HEA and the Secretary's implementing regulations. See 20 U.S.C. § 1099b(a); see also 34 C.F.R. pt. 602, subpt. B. Those criteria require an accrediting agency to demonstrate, inter alia, that it: (1) has “standards for accreditation” that effectively address areas such as “student achievement, ” “[r]ecruiting and admissions practices, ” and compliance with its responsibilities under Title IV, see 34 C.F.R. § 602.16(a)(1)(i), (vii), (x); (2) has “effective mechanisms for evaluating an institution's . . . compliance with the [accreditation] standards, ” id. § 602.17; (3) has “a set of monitoring and evaluation approaches that enables the [accrediting] agency to identify problems with an institution's . . . continued compliance with [accreditation] standards, ” id. § 602.19(b); (4) enforces the accreditation standards against institutions that are not in compliance with them, see id. § 602.20(a); and (5) “maintain[s] a systematic program of review that demonstrates that its standards are adequate to evaluate the quality of the education . . . provided by the institutions, ” id. § 602.21(a). The statute provides that in order to determine whether an accrediting agency is in compliance with these criteria, the Secretary “shall conduct a comprehensive review and evaluation of the [agency's] performance, ” as well as “an independent evaluation of the information provided by [the] agency.” 20 U.S.C. § 1099b(n)(1). Additionally, the statute requires the Secretary to “consider all available relevant information concerning the compliance of the accrediting agency . . . with the criteria.” Id. § 1099b(n)(3).

         Pursuant to the HEA, the Secretary has promulgated regulations establishing procedures for the review of an accrediting agency's application for recognition. See 20 U.S.C. § 1099b(o) (providing that “[t]he Secretary shall by regulation provide procedures for the recognition of accrediting agencies”). First, the staff of the Department's Office of Postsecondary Education (the “Department staff”) “analyzes the [accrediting] agency's application . . . to determine whether the agency satisfies the criteria for recognition, taking into account all available relevant information concerning the compliance of the agency with those criteria and in the agency's effectiveness in applying the criteria.” 34 C.F.R. § 602.32(b). The Department staff's analysis includes, inter alia, “[r]eview of [ ] public comments and other third-party information the Department staff receives . . ., [ ] the agency's responses to third-party comments, . . . as well as any other information [the] Department staff assembles for purposes of evaluating the agency.” Id. § 602.32(b)(2). Once it completes its evaluation, the Department staff prepares and sends to the accrediting agency “a written draft analysis” that “includ[es] any identified areas of non-compliance and a proposed recognition recommendation” and that “[i]nvites the agency to provide a written response . . ., specifying a deadline that provides at least [thirty] days for the agency's response.” Id. § 602.32(f)(1)-(3). Upon receipt of the accrediting agency's response, the Department staff reviews the response and “prepares [a final] written [ ] analysis, ” which “includes a recognition recommendation to the senior Department official, . . . including . . . a recommendation to approve, deny, limit, suspend, or terminate recognition, [or] require the submission of a compliance report and continue recognition pending a final decision on compliance.” Id. § 602.32(f)(4). The Department staff must “[p]rovide [its final written analysis] to the agency[] no later than seven days before the [National] Advisory Committee [on Institutional Quality and Integrity (the “Advisory Committee”)] meeting, ” which is the next step in the process. Id. § 602.32(f)(5).

         The Department staff then submits its final written analysis and certain other relevant materials to the Advisory Committee for its review. See id. § 602.34(c).[4] Thereafter, the Advisory Committee holds a public meeting to “consider[] the materials provided . . . and invites [the] Department staff, the [accrediting] agency, and other interested parties to make oral presentations during the meeting.” Id. § 602.34(e). At the meeting, the Advisory Committee adopts “a written motion . . . regarding the agency's recognition, ” id. § 602.34(f), which it then “forwards to the senior Department official” in the form of “a recommendation to[, inter alia, ] approve, deny, limit, suspend, or terminate recognition, . . . or to require the agency to submit a compliance report and to continue recognition pending a final decision on compliance, ” id. § 602.34(g). “Within ten days following the Advisory Committee meeting, the [accrediting] agency and [the] Department staff may submit written comments to the senior Department official, ” id. § 602.35(a); however, neither party “may submit additional documentary evidence . . . unless the Advisory Committee[] . . . proposes finding the agency noncompliant with . . . a criterion . . . not identified in the [ ] Department staff['s final] written analysis, ” id. § 602.35(c)(1).

         “The senior Department official [then] makes a decision” on the accrediting agency's application for recognition “based on the record compiled” in the prior proceedings, including all materials submitted to the Advisory Committee, the Advisory Committee meeting transcript, the Advisory Committee's recommendation, and any written comments from the accrediting agency or the Department staff in response to the Advisory Committee's recommendation. See Id. § 602.36(a). “[I]f the agency either fails to comply with the criteria for recognition, . . . or to apply those criteria effectively, the senior Department official denies, limits, suspends, or terminates recognition” and “specifies the reasons for this decision, including all criteria the agency fails to meet and all criteria the agency has failed to apply effectively.” Id. § 602.36(e)(2)(i)-(ii). However, “if . . . the senior Department official concludes that the agency will demonstrate or achieve compliance with the criteria . . . and effective application of those criteria within [twelve] months or less, the senior Department official may continue the agency's recognition, pending submission by the agency of a compliance report [and] review of the report.” Id. § 602.36(e)(3)(i). The senior Department official must notify the agency of his or her decision in writing “regarding the agency's recognition within [ninety] days of the Advisory Committee meeting.” Id. § 602.36(d).

         “[An accrediting] agency may appeal the senior Department official's decision to the Secretary.” Id. § 602.37(a). On appeal, the Secretary considers the senior Department official's decision, the accrediting agency's and the senior Department official's written submissions on appeal, and the entire record that was before the senior Department official. Id. § 602.37(d). If the Secretary determines that the agency has failed to demonstrate compliance with or effective application of any of the recognition criteria, the Secretary is authorized to take any of the actions available to the senior Department official, see id. (recognizing that “the Secretary makes a recognition decision, as described in § 602.36(e)”), including “den[ying], limit[ing], suspend[ing], or terminat[ing] recognition” or “continu[ing] the agency's recognition, pending submission by the agency of a compliance report [and] review of the report, ” id. § 602.36(e). If the Secretary ultimately decides to deny, limit, suspend, or terminate an agency's recognition, “[a]n agency may contest the Secretary's decision . . . in the Federal courts as a final decision in accordance with applicable Federal law.” Id. § 602.38.

         B. Factual and Procedural History

         The Accrediting Council is a nonprofit organization that was, until recently, recognized by the Department as an accrediting agency for certain institutions of higher education. See Pl.'s Mem. at 1; see also AR 3 (“[The Accrediting Council] is a previously-recognized national accrediting agency[.]”). On January 8, 2016, the Accrediting Council submitted its Petition for Continued Recognition, which was comprised of a narrative submission and approximately one hundred exhibits. See Pl.'s Mem. at 1; see also AR 9, 677-752 (petition); AR 932-7, 089 (exhibits). Thereafter, the Department informed the Accrediting Council that its petition would be considered at the Advisory Committee meeting scheduled for June 23, 2016. See Pl.'s Mem., Exhibit (“Ex.”) A (Declaration of Anthony S. Bieda (“Bieda Decl.”) (Mar. 30, 2017)) ¶ 7.

         On March 3, 2016, Herman Bounds, the Director of the Accreditation Group for the Department's Office of Post Secondary Education, emailed Albert Gray, the Accrediting Council's then-President and Chief Executive Officer, informing him “that the Office of the Under Secretary [ ] ha[d] developed a set of question[s] [it] want[ed] to ask [the Accrediting Council] during the recognition process.” AR 437. He explained that the questions, which he attached to the email, see AR 438-42, were “tied . . . to relevant recognition criteria, ” and that the Accrediting Council's petition would be “return[ed] . . . so [that the Accrediting Council] c[ould] respond to the[] questions[] in [its] petition, ” AR 437. He further informed Gray that the Accrediting Council would be “allow[ed] [ ] up to [thirty] days to respond.” Id.

         The Under Secretary's questions were divided into two parts: “Overall Questions” (“Part I”) and “Questions related to specific standards in [the Accrediting Council's] Jan[uary] 2016 submission” (“Part II”). See AR 438-42. Part I contained questions regarding “[Accrediting Council]-accredited institutions [that] have been the subject of major investigations and lawsuits from multiple federal agencies and state attorneys general, ” including Corinthian schools, ITT Technical Institute, and the Michigan Jewish Institute. AR 438. Part II requested “further information, and [d]ocumentation as appropriate, on . . . questions related to [the Accrediting Council's] January 2016 submission to the Department.” AR 439. Each of the Part II questions sought information related to the Accrediting Council's performance as to particular recognition criteria, specifically, 34 C.F.R. §§ 602.13, .15-.17, .19-.21, .24, .27-.28, and many of the questions referenced the “problem schools” identified in Part I. See AR 439-42.

         On March 10, 2016, Gray responded to Bounds's email and requested a 45-day extension for the Accrediting Council to submit its response to the Under Secretary's questions, noting that the questions were “substantial” and would require it to “supplement or replace more than [thirty] narrative sections and more than [one hundred] exhibits in [its] petition that was submitted . . . in early January.” AR 435. On March 15, 2016, Bounds responded to Gray's request, informing him that the Department would deny an extension as to Part I, but would grant an extension as to Part II, which would therefore be due on May 16, 2016. See AR 434. The Department further explained that “given that information received as late as May 16, 2016, would not allow [the] Department staff the time to fully review and analyze [that information] in time for the June [Advisory Committee] meeting, [the Accrediting Council] should be prepared to return at the fall [Advisory Committee] meeting for further discussion and possible action as warranted.” AR 434. Additionally, the Department emphasized that “the information [it] requested is important to the Department's responsibility to monitor and review [the Accrediting Council]'s effectiveness as a recognized accrediting agency.” Id. The Accrediting Council timely submitted its response to Part I on April 1, 2016. See AR 10, 152-165; see also Pl.'s Mem., Ex. A (Bieda Decl.) ¶ 12.

         On May 4, 2016, the Department staff provided the Accrediting Council with a draft analysis and report, in which it found the Accrediting Council noncompliant with multiple recognition criteria and recommended that its petition be denied. See AR 9, 753-894. The Department staff instructed the Accrediting Council to respond to the draft report by June 3, 2016. See id.

         On May 16, 2016, the Accrediting Council uploaded its Part II response to the Department's system, but did not technically “submit” the response due to questions it had about the proper method for submission, specifically, its desire “to be sure . . . that [the Accrediting Council would] have the opportunity to submit more information . . . as [pa]rt of [its] response to” the Department staff report. AR 431. On May 18, 2016, Steve Porcelli, a member of the Department staff, see Pl.'s Mem. at 25, instructed Anthony Bieda, the then-Executive in Charge at the Accrediting Council, that “[u]nless [he] hear[d] otherwise from [the Department] within the next two hours, ” he should “hit the submit button, ” AR 431. Approximately one hour later, Bounds emailed Bieda, instructing him to “not include the supplemental information in the petition at all, ” noting that the Accrediting Council could “submit[] [it] to [the Department] on a flash drive.” AR 430. As the explanation for this decision, Bounds stated that “the Department do[es] not want to mix the responses. [It] will review the supplemental information . . . separately outside of the recognition process.” Id. On May 19, 2016, pursuant to Bounds's instructions, the Accrediting Council delivered to the Department a thumb drive containing its Part II response. See Pl.'s Mem., Ex. A (Bieda Decl.) ¶ 18; see also Defs.' Supp. Opp'n, Ex. 1 (Declaration of Herman Bounds, Jr. (“Bounds Decl.”) (Apr. 13, 2017)) ¶ 11. According to the Accrediting Council, its Part II response contained:

         • A 27-page single-spaced narrative responding to each of the Department's questions regarding specific recognition criteria . . .; and

         • Approximately 36, 000 pages of documents relating to:

• [Its] adverse actions taken against dozens of campuses of schools that [it] has accredited;
• Accreditation application materials submitted to [it] by specific institutions identified by the Department, and [its] evaluations of those institutions' applications (including site visit reports); and
• Voluminous email correspondence between [it] and specific institutions identified by the Department.

Pl.'s Mem. at 10.

         On June 3, 2016, the Accrediting Council requested an extension of time to file its response to the Department staff's draft analysis and report. See AR 429; see also Defs.' Supp. Opp'n, Ex. 1 (Bounds Decl.), Attachment A. Bounds denied the request in a letter the same day, explaining that “[t]he draft analysis include[d] numerous findings of non-compliance, ” and, consequently, a “[d]eferral would violate the[] [HEA's] requirements, ” and in any event, Bounds had “no authority to grant one.” AR 429. Bounds additionally explained that “[the Accrediting Council] w[ould] not be compelled to respond at the June[] 2016 [Advisory Committee] meeting to any analysis by the staff of its [Part II] submission, ” noting that “[t]he delayed submission of th[at] material, and the additional deferral of consideration of it, was an accommodation provided to [the Accrediting Council], and does not postpone the need for [the Accrediting Council] to establish its compliance for purposes of renewal.” Id. In other words, the Department staff would not consider the Accrediting Council's petition or the Part II submission at the fall Advisory Committee meeting as it originally suggested. See Pl.'s Mem. at 11 (citing AR 429).

         On June 3, 2016, the Accrediting Council timely filed its response to the Department staff's draft analysis and report. See Defs.' Supp. Opp'n, Ex. 1 (Bounds Decl.) ¶ 13; see also Pl.'s Mem., Ex. A (Bieda Decl.) ¶ 20; AR 7, 100-9, 424. As part of its response, the Accrediting Council detailed various actions it had taken to address compliance issues identified by the Department staff in its draft analysis and report. For example, in response to the Department staff's finding that the Accrediting Council did not comply with 34 C.F.R. § 602.16(a)(1)(v) because its “fiscal and administrative standards ha[d] failed to identify institutions that were unable to run their programs efficiently, ” AR 9, 873, the Accrediting Council represented that, effective May 1, 2016, it had established an “‘At-Risk Institution' committee to review all actions facing an institution, as well as information that calls into question its general operations, ” AR 829-30, including information related to the institutions' “financial stability[, ] [ ] student achievement performance[, and] [ ] adverse information, ” see AR 830; see also AR 8, 430. The Accrediting Council further represented that pursuant to this new system, it had already “conducted three special visits” and “ha[d] authorized four additional special visits in June 2016.” AR 830.

         On June 15, 2016, the Department staff issued its final report. See AR 763-92; see also Pl.'s Mem. at 12. The report found the Accrediting Council to be noncompliant with at least twenty-one recognition criteria. See AR 763-65. As support for a number of its findings of noncompliance, the Department staff cited various government investigations and lawsuits demonstrating “widespread placement rate fraud” and other misconduct by Accrediting Council-accredited institutions nationwide. See AR 775 (citing the Department's and the California Attorney General's findings of placement rate fraud by numerous Corinthian Colleges campuses); see also AR 774 (citing “investigations from [twenty] different [Attorneys General] regarding, e.g., placement [and] other rates, ” against ITT Technical Institute campuses); AR 779 (citing the Department's findings of Title IV fraud by the Michigan Jewish Institute). The Department staff concluded that, in a number of instances, the Accrediting Council was aware of misconduct by institutions it had accredited, but failed to appropriately address the misconduct or report it to the Department. See AR 774 (“[The Accrediting Council] had irrefutable evidence of [falsified or low placement rates], . . . [yet, it] left the institution's accreditation in place or re-accredited it anyway[.]”); see also AR 779 (despite being notified by the Department of concerns regarding Title IV fraud by the Michigan Jewish Institute and subsequently discovering “numerous findings of noncompliance, ” the Accrediting Council “renewed the institution's accreditation ‘with admonishment'” and failed to report its findings of noncompliance to the Department). In the Department staff's view, these failures demonstrated that the Accrediting Council had failed to effectively apply its standards regarding student achievement, recruiting, and Title IV compliance, as well as failed to effectively enforce and monitor institutions' compliance with those standards. See AR 783 (concluding that “the large number of substantial settlements agreed to by [Accrediting Council]-accredited institutions in qui tam actions and actions by State attorneys general indicate that [the Accrediting Council]'s . . . monitoring regime appears insufficient to deter widespread misconduct regarding placement, recruiting[, ] and admissions”); see also AR 786 (citing the Accrediting Council's failure “to provide [ ] documentation to demonstrate that it initiated [the required enforcement actions against] an institution found to be out-of-compliance with any standard, ” including ITT Technical Institute and other institutions subject to state and federal investigations). Consequently, the Department staff recommended that the Department “[d]eny the [Accrediting Council]'s petition for renewal of recognition, and withdraw the [Accrediting Council]'s recognition[, ] . . . which would mean [the Accrediting Council] could not remedy its compliance issues.” AR 763.

         On June 23, 2016, the Advisory Committee reviewed the Accrediting Council's petition at its biannual meeting. See AR 470-762 (transcript of proceedings). The Advisory Committee heard presentations from representatives of the Accrediting Council, the Department staff, and various interested third parties, including the Maryland Assistant Attorney General, who testified regarding state investigations into schools accredited by the Accrediting Council, including ITT Technical Institute. See AR 616-27. At the conclusion of the hearing, the Advisory Committee voted ten to three to revoke the Accrediting Council's recognition. See AR 761; see also AR 747 (introducing the motion to revoke the Accrediting Council's recognition).

         Following the Advisory Committee meeting, in July 2016, the Department staff and the Accrediting Council submitted comments to the senior Department official for her consideration. See AR 361-429. In its comments, the Accrediting Council argued that it “c[ould] demonstrate compliance with all accrediting agency criteria, and provide evidence of effective application of those criteria, by April 2017, well within the [twelve]-month period the [senior Department official] is permitted to allow [the Accrediting Council] to come into compliance.” AR 398-99. Specifically, it represented that “more than half ([eleven]) of the [twenty-one] problems identified in the [Department s]taff [r]eport were remedied [on] July 1, 2016[, ] . . . or will be remedied by . . . August 2016, ” and that as to the “remaining [ten] findings, ” the Accrediting Council “[wa]s acting . . . to establish new policies and procedures[, ] . . . with evidence of implementation to be established no later than . . . April 2017.” AR 397-98.

         On September 22, 2016, the senior Department official issued her decision, in which she found that the Accrediting Council was noncompliant with the same twenty-one recognition criteria identified by the Department staff in its final report. See AR 314-15. She ultimately “agree[d] with [the] Department Staff and [the Advisory Committee] that [the Accrediting Council] could not come into full compliance within [twelve] months, ” reasoning that the Accrediting Council's violations “reveal[ed] fundamental problems with [its] functions as an accreditor, ” and that its “track record d[id] not inspire confidence that it c[ould] address all of the problems effectively.” AR 315. She further reasoned that “most of the remedial efforts currently underway began in earnest just several months ago, despite having reason to take action long before that, ” id., and, in any event, “demonstrating compliance . . . requires more than just new policies that address the issues identified by [the] Department staff, ” AR 316. Rather, “it requires evidence of effective application and implementation of those new policies . . ., which the [Accrediting Council] simply c[ould ]not provide for all of the[] criteria within [twelve] months.” Id. Based on these findings, the senior Department official “concur[red] with the recommendations of [the] Department staff and [the Advisory Committee, and a]ccordingly, . . . terminat[ed] the Department's recognition of [the Accrediting Council] as a nationally recognized accrediting agency.” AR 314. On October 4, 2016, the Accrediting Council filed a request for reconsideration of the senior Department official's decision, see AR 236-313, which the senior Department official denied, see AR 231-32.

         On September 23, 2016, the Accrediting Council appealed the senior Department official's decision to the Secretary. See AR 228-30. In its briefings before the Secretary, the Accrediting Council represented that it “continue[d] to take aggressive action to implement recent changes to its accrediting standards and review procedures, . . . [and t]hese ongoing efforts evidence[d] that [it would] be able to demonstrate full compliance within twelve months, particularly in the areas that appear[ed] to be of concern to the [senior Department official].” AR 121. As evidence of these efforts, the Accrediting Council cited the following actions taken after the Advisory Committee meeting: (1) “significant leadership changes, ” including the fact that as of August 1, 2016, “the President, and five Vice Presidents, [we]re no longer employed by [the Accrediting Council, ] [t]he Board doubled the number of public members . . . [, and] [t]he Board also appointed Roger J. Williams - a [twenty-five]-year veteran of management of higher education accreditation - as the new Interim Chief Executive Officer and President, ” AR 120- 21; and (2) various adverse actions and other enforcement measures, including that it took adverse action against DuBois Business College on August 1, 2016, and that in or after August 2016, it conducted “nine unannounced on-site visits to assess the level of compliance across a broad spectrum of ITT's campuses, ” AR 122.[5]

         On December 12, 2016, the Secretary issued her final decision. See AR 14. Although not addressing all of the recognition criteria as to which the Department staff had found the Accrediting Council noncompliant, the Secretary found the Accrediting Council to be noncompliant with at least five separate recognition criteria relating to the Accrediting Council's standards, application of its standards, monitoring, enforcement, and review of its standards. See AR 6-8 (citing 34 C.F.R. §§ 602.16(a), .17, .19(b), .20-.21). The Secretary additionally determined that

[i]n the context of the[] examples of [the Accrediting Council's] failures and others, the profound problems with [the Accrediting Council's] accreditation scheme . . ., and the lack of progress in addressing those problems in crucial areas, I cannot conclude that [the Accrediting Council] would be able to both revise (or, in some instances, enact) policies and demonstrate its effective implementation of those policies within [twelve] months as required to come into compliance.
. . . Both [the Accrediting Council's] insufficient progress in addressing its areas of noncompliance and [its] past track record weigh against granting a renewal of recognition for [twelve] months. Rather, I find that [the Accrediting Council]'s petition for renewal should be denied and that the Department should withdraw its recognition.

AR 10.

         On December 15, 2016, the Accrediting Council initiated this action seeking judicial review of the Secretary's decision and simultaneously seeking immediate injunctive relief from that decision. See generally Compl.; see also Plaintiff's Motion for Temporary Restraining Order and Preliminary Injunction (Dec. 15, 2016). On December 21, 2016, following a hearing, the Court denied the Accrediting Council's request for immediate injunctive relief. See Order at 1 (Dec. 21, 2016). Thereafter, on February 22, 2017, following a second hearing, the Court denied the Accrediting Council's motion for a preliminary injunction. See Order at 1 (Feb. 22, 2017). This opinion resolves the parties' cross-motions for summary judgment.


         A moving party is entitled to summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In the APA context, summary judgment is the mechanism for deciding whether as a matter of law an agency action is supported by the administrative record and is otherwise consistent with the APA standard of review. See, e.g., Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-16 (1971). But, due to the limited role a district court plays in reviewing the administrative record, the typical summary judgment standards set forth in Federal Rule of Civil Procedure 56 are not applicable. Stuttering Found. of Am. v. Springer, 498 F.Supp.2d 203, 207 (D.D.C. 2007), aff'd, 408 Fed.Appx. 383 (D.C. Cir. 2010). Rather, “[u]nder the APA, it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas ‘the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did.'” Id. (quoting Occidental Eng'g Co. v. INS, 753 F.2d 766, 769-70 (9th Cir. 1985)). In other words, “when a party seeks review of agency action under the APA, the district judge sits as an appellate tribunal, ” and “[t]he ‘entire case' on review is a question of law.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. Cir. 2001) (footnote and citations omitted).

         The APA “sets forth the full extent of judicial authority to review executive agency action for procedural correctness.” Fed. Commc'ns Comm'n v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). It requires courts to “hold unlawful and set aside agency action, findings, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). However, “the scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Nonetheless, “the agency must examine the relevant data and articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.'” Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). “Courts ‘will uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.'” Pub. Citizen, Inc. v. Fed. Aviation Admin., 988 F.2d 186, 197 (D.C. Cir. 1993) (quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286 (1974)).

         III. ANALYSIS

         A. Reviewability

         The defendants assert that the Secretary's decision should be understood as two decisions, and contend that only one of these decisions is reviewable by this Court. According to the defendants, the first decision is the Secretary's determination that the Accrediting Council failed to comply with multiple recognition criteria. See Defs.' Mem. at 1, 3. Although the defendants concede that this decision is subject to judicial review, see id. at 16, they argue that the Accrediting Council does not challenge this decision in this Court, see id. at 1, and in any event, “[g]iven the extensive and undisputed record evidence of [the Accrediting Council]'s pervasive noncompliance[, ] including [its] numerous admissions of non-compliance” in the administrative proceedings, the Accrediting Council “cannot sustain an argument challenging [that decision], ” Defs.' Reply at 1. The defendants contend that the second decision is the Secretary's “choice of remedy, ” i.e., “the decision of whether to deny [federal recognition] or conditionally (and temporarily) extend [it].” Defs.' Mem. at 1-2. According to the defendants, this is the decision that the Accrediting Council is challenging, see Defs.' Reply at 1, but the defendants argue that because this “is a decision that Congress committed by law to the discretion of the Secretary, ” Defs.' Mem. at 2 (citing 20 U.S.C. § 1099b(a)), it is unreviewable under the APA, id. (citing 5 U.S.C. § 701(a)(2)). Although the Accrediting Council does appear to concede that it does not challenge the Secretary's determination of its noncompliance, it nonetheless argues that “under the Department's own regulations[, ] a Secretary's ultimate decision to deny, limit, suspend, or terminate an agency's recognition can be reviewed, ” Pl.'s Opp'n at ...

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