Passut v. Devos

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MARK PASSUT, et al., )
)
Plaintiffs, )
)
v. )
)
MIGUEL CARDONA, in his official )
capacity as the Secretary of the United ) Civil Action No. 19-1606 (RBW)
1
States Department of Education, et al., )
)
Defendants. )
____________________________________)

MEMORANDUM OPINION

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.’

1
Miguel Cardona is the current Secretary of the United States Department of Education, and he is therefore
substituted for Betsy DeVos as the proper party defendant pursuant to Federal Rule of Civil Procedure 25(d).
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

2
In addition to the filings already identified, the Court considered the following submissions in rendering its
decision: (1) the Memorandum of Points and Authorities in Support of Defendants’ Motion to Dismiss (“Defs.’
Mem.”), ECF No. 16; (2) the Plaintiffs’ Opposition to Defendants’ Motion to Dismiss (“Pls.’ Opp’n”), ECF No. 18;
(3) the Defendants’ Reply Memor[]an[d]um in Support of their Motion to Dismiss (“Defs.’ Reply”), ECF No. 20;
and (4) the Plaintiffs’ [Proposed] Surreply in Opposition to Defendants’ Motion to Dismiss (“Pls.’ Surreply”), ECF
No. 23.
3
Because the Court concludes for the reasons described below that it lacks jurisdiction to resolve the plaintiffs’
pending motion for class certification, the Court also concludes that it must dismiss as moot the plaintiffs’ motion
for class certification. See Heard v. U.S. Soc. Sec. Admin., 170 F. Supp. 3d 124, 135 (D.D.C. 2016) (Walton, J.)
(denying a motion for class certification as moot in light of the Court’s granting of the defendants’ motion to dismiss
pursuant to Rule 12(b)(1)).

2
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

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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

4
The plaintiffs allege in passing that the Deputy Under Secretary’s renewed recommendation contained errors,
including that the Deputy Under Secretary “purported to rely on nine letters of support from other institutional
accrediting agencies[,]” that “did not exist[,]” Am. Compl. ¶ 64, and that, when the error was identified, the Deputy
(continued . . .)

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

(. . . continued)
Under Secretary issued a correction that “grossly mischaracterized and exaggerated the level of support” in other
letters that were cited to by the Deputy Under Secretary, id. ¶ 65 (discussing Corrected Senior Department Official’s
Response to ACICS, Accrediting Council for Ind. Colls. & Schs., U.S. Dep’t of Educ., No. 16-44-O (Oct. 15, 2018),
https://www2.ed.gov/about/offices/list/ope/correctedresponsefinal.pdf). However, these alleged errors do not form
the basis for either of the two counts of APA violations alleged by the plaintiffs, see Am. Compl. ¶¶ 97–110 (setting
forth the plaintiff’s two counts), and therefore the Court need not address them.

5
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 College and to “extend[] Virginia

College’s show-cause directive[,]” id. ¶ 81, “enabled Virginia College to enroll students,

including [the plaintiffs], for the Fall 2018 term—and allowed the Department to issue [student]

loans to them[.]” Id. ¶ 82. The plaintiffs allege that they “took on thousands of dollars in

Department-issued debt to pay the quarterly tuition” but, “[i]f Virginia College had not again

been able to claim accredited status, or eligibility for federal student aid, [the plaintiffs] would

not have enrolled for the Fall 2018 term.” Id.

The plaintiffs assert that “[d]uring the Fall 2018 term, [they] were completing fieldwork

requirements for their degree that were not scheduled to be completed until late December 2018

6
or January 2019.” 5 Id. ¶ 83. Kaiser alleges that as of “December 2018[,] . . . the only

requirements that [he] had to fulfill to earn his [occupational therapy assistant] degree were two

fieldwork placements.” Pls.’ Opp’n, Exhibit (“Ex.”) 2 ¶ 1 (Declaration of Mark Kaiser (“Kaiser

Decl.”)). He further asserts that “[w]hen [Virginia College] announced [that] it was closing on

December 5, 2018, [he] was doing fieldwork at Circle Center Adult Day Services in Richmond,

Virginia[,]” where “he had started . . . on November 26, 2018[,]” id., Ex. 2 ¶ 2 (Kaiser Decl.),

after “ha[ving] previously left a different fieldwork placement because it was not a good fit[,]”

id., Ex. 2 ¶ 3 (Kaiser Decl.). Because “[Kaiser’s] program required that [he] do eight weeks at a

fieldwork placement in order to earn credit,” he was supposed to “complete the fieldwork at

Circle Center in mid-January 2019.” Id., Ex. 2 ¶ 4 (Kaiser Decl.).

Passut makes similar allegations. He asserts that as of “December 2018[,] . . . the only

requirements that [he] had to fulfill to earn [his occupational therapy assistant] degree were two

fieldwork placements.” Id., Ex. 3 ¶ 1 (Declaration of Mark Passut (“Passut Decl.”). He further

alleges that “[w]hen [Virginia College] announced [that] it was closing on December 5, 2018,

[he] was doing [his] fieldwork at Lancashire Convalescent and Rehabilitation Center in

Kilmarnock, Virginia[,]” and that he “had started at Lancashire on November 12, 2018[,]” id.,

Ex. 3 ¶ 2 (Passut Decl.), after “ha[ving] previously left a different fieldwork placement because it

5
The Court notes that there appears to be a discrepancy between the plaintiffs’ declarations appended to their
opposition to the defendants’ motion to dismiss and the Amended Complaint regarding the intended end dates of the
plaintiffs’ fieldwork. Compare Pls.’ Opp’n, Ex. 3 ¶ 4 (Passut Decl.) (attesting that the plaintiffs were supposed to
“complete the[ir] fieldwork in mid-January 2019” (emphasis added)); id. Ex. 2 § 4 (Kaiser Decl.) (same), with Am.
Compl. ¶ 83 (alleging that “[d]uring the Fall 2018 term, [the plaintiffs] were completing fieldwork requirements for
their degree that were not scheduled to be completed until late December 2018 or January 2019” (emphasis added)).
However, regardless of whether the plaintiffs were intended to complete their fieldwork in “late December 2018” or
“mid-January 2019[,]” there does not appear to be any dispute that the plaintiffs’ fieldwork was scheduled to be
completed after the closure of Virginia College on December 18, 2018. See generally Defs.’ Mem.; Pls.’ Opp’n;
Defs.’ Reply. Accordingly, because the end date of the plaintiffs’ fieldwork is only relevant to the plaintiffs’
asserted theories of injury and the Court’s standing analysis to the extent that the plaintiffs allege that they could not
complete their fieldwork prior to Virginia College’s closure and therefore took on loans and completed coursework
for which they did not receive credit, the Court need not resolve this discrepancy.

7
was not a good fit[,]” id., Ex. 3 ¶ 3 (Passut Decl.). According to Passut, “[his] program required

that [he] do eight weeks at a fieldwork placement in order to earn credit, which meant [that he]

would complete the fieldwork in mid-January 2019.” Id., Ex. 3 ¶ 4 (Passut Decl.).

F. The Closure of Virginia College

The plaintiffs allege that “[o]n December 4, 2018, [the Accrediting Council] withdrew

accreditation from Virginia College[,]” Am. Compl. ¶ 84, “[o]n December 5,[ 2018,] Virginia

College announced that it would shutter its doors,” id. ¶ 85, and “Virginia College’s Richmond

campus ultimately closed on December 18[, 2018,]” id. ¶ 86. According to the plaintiffs, they

were informed by an email from Kathryn Rainey, “[their] program’s Academic Fieldwork

Coordinator,” id., Ex. 2 ¶ 3 (Kaiser Decl.), that “because [they would] not be finished [with their

fieldwork] [ ] by December 18[, 2018,] when [Virginia College would] close, [they would] not

be able to finish [their] fieldwork[.]” Id., Ex. 2 ¶ 6 (Kaiser Decl.) (internal quotations omitted);

see also id., Ex. 3 ¶ 7 (Passut Decl.). The plaintiffs allege that “[b]ut for the closure of Virginia

College’s Richmond campus on December 18, [2018, they] would have been able to finish their

fieldwork, and therefore receive credit for the Fall 2018 term.” Am. Compl. ¶ 87.

G. This Case

On June 3, 2019, the plaintiffs initiated this action, alleging that the Secretary’s

April 2018 Order violated the APA. See id. ¶ 1, 102, 104, 111. On September 23, 2019, the

defendants filed their motion to dismiss the plaintiffs’ Amended Complaint, see Defs.’ Mot. at 1,

on the grounds that “the Court lacks jurisdiction and [the p]laintiffs fail to state a plausible claim

to relief[,]” Defs.’ Mem. at 1, and, on November 20, 2019, the plaintiffs filed their motion for

class certification, see Pl.’s Mot. at 1. These motions are the subjects of this Memorandum

Opinion.

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 II. STANDARD OF REVIEW

Federal district courts are courts of limited jurisdiction, Kokkonen v. Guardian Life Ins.

Co. of Am., 511 U.S. 375, 377 (1994), and therefore, “[a] motion for dismissal under [Federal

Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s jurisdiction[.]’”

Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v.

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if

it “lack[s] [ ] subject[-]matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). And, because “it is to be

presumed that a cause lies outside [ ] [the Court’s] limited jurisdiction,” Kokkonen, 511 U.S. at

377, the plaintiff “bears the burden of establishing” that the Court has subject-matter jurisdiction,

Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).

In deciding a motion to dismiss based upon lack of subject matter jurisdiction, the Court

“need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Ord. of

Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such

materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has

jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22

(D.D.C. 2000); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C. Cir.

2005). Additionally, the Court must “assume the truth of all material factual allegations in the

complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all

inferences that can be derived from the facts alleged[.]’” Am. Nat’l Ins. Co. v. Fed. Deposit Ins.

Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d 970, 972

(D.C. Cir. 2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear

closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to

9
state a claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (alterations in original) (citation and

internal quotation marks omitted).

III. ANALYSIS

The defendants move to dismiss the plaintiffs’ Amended Complaint for lack of

subject-matter jurisdiction, arguing that “[the p]laintiffs lack standing.” 6 Defs.’ Reply at 2.

Specifically, the defendants argue that (1) the plaintiffs’ “alleged injur[ies] . . . [are] not traceable

to the Secretary’s [April 2018 Order,]” Defs.’ Mem. at 1; (2) “even if [the plaintiffs’ alleged

injuries were] traceable to the Secretary’s [April 2018 Order], the sole relief in an APA suit such

as this—setting aside the challenged decision—would not impact, let alone redress, the injuries

claimed[,]” id.; and (3) the plaintiffs’ alleged injuries do not constitute injuries-in-fact because

they are either “not actual and concrete” or “self-inflicted[.]” Defs.’ Reply at 15. In opposition,

the plaintiffs argue that they have standing because (1) “[t]hey incurred substantial debt to the

Department to attend Virginia College for the Fall 2018 term[—]debt which could not have been

issued but for the Department’s unlawful reinstatement of [the Accrediting Council in the

Secretary’s April 2018 Order,]” Pls.’ Opp’n at 1; (2) “the Court can provide several remedies

sufficient to redress [their] injuries: it can vacate [their] loans, it can enjoin [the d]efendants from

continuing to collect on the[ loans], and it can declare that [the loans] are unenforceable[,]” id.

at 2; and (3) the “[p]laintiffs[,] . . . through no fault of their own, could not have finished their

fieldwork and received credit for the term by the time the school closed[,]” therefore, “whether

[the p]laintiffs’ injury is properly construed as the financial obligations imposed by their student

6
The defendants argue in the alternative that (1) the Court lacks subject-matter jurisdiction because the plaintiffs
“challenge a facially interim decision . . . in contravention of the bedrock principle that an interim decision is not
‘final agency action’ reviewable under the APA[;]” Defs.’ Mem. at 1 (emphasis in original), and (2) the Court
should dismiss the plaintiffs’ Amended Complaint pursuant to Rule 12(b)(6) because the plaintiffs “fail to plausibly
allege that there is anything inherently erroneous, let alone arbitrary and capricious, in the Secretary’s decision[;]”
id. Because the Court concludes that the plaintiffs lack standing, it need not address the defendants’ other
arguments.

10
loans, or in conjunction with their lost credits, [the p]laintiffs have adequately pleaded [an]

injury[-]in[-]fact[,]” id. at 13. For the reasons that follow, the Court agrees with the defendants

that the Court lacks subject-matter jurisdiction because the plaintiffs have not demonstrated

Article III standing.

“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 157 (2014) (citing U.S.

Const. art. III, § 2). “In an attempt to give meaning to Article III’s case-or-controversy

requirement, the courts have developed a series of principles termed ‘justiciability doctrines,’

among which are standing[,] ripeness, mootness, and the political question doctrine.” Nat’l

Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (quoting Allen v.

Wright, 468 U.S. 737, 750 (1984)). If a plaintiff lacks Article III standing, a district court

need not delve into [a plaintiff’s] myriad constitutional and statutory claims . . .
because a court may not resolve contested questions of law when its jurisdiction is
in doubt, as [h]ypothetical jurisdiction produces nothing more than a hypothetical
judgment—which comes to the same thing as an advisory opinion, disapproved
by [the Supreme] Court from the beginning.

Am. Freedom L. Ctr., 106 F. Supp. 3d at 108 (first, third, and fourth alterations in original) (first

quoting Crow Creek Sioux Tribe v. Brownlee, 331 F.3d 912, 915 (D.C. Cir. 2003); then quoting

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 101 (1998)).

[T]he irreducible constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally
protected interest which is (a) concrete and particularized, and (b) “actual or
imminent, not ‘conjectural’ or ‘hypothetical.’” Second, there must be a causal
connection between the injury and the conduct complained of—the injury has to
be “fairly . . . trace[able] to the challenged action of the defendant, and not . . .
th[e] result [of] the independent action of some third party not before the court.”
Third, it must be “likely,” as opposed to merely “speculative,” that the injury will
be “redressed by a favorable decision.”

11
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992) (second, third, fourth, and fifth

alterations in original) (citations omitted). “The absence of any one of these three elements

defeats standing.” Newdow v. Roberts, 603 F.3d 1002, 1010 (D.C. Cir. 2010).

The Court begins by acknowledging that, as noted by the defendants, see Defs.’ Reply

at 3, the plaintiffs appear to allege multiple injuries: (1) the plaintiffs’ acquisition of student

loans to attend Virginia College, which are, according to the plaintiffs, “unlawful and void ab

initio” (the “plaintiffs’ ‘unlawful and void ab initio loans’ theory”), Am. Compl. ¶ 105; (2) the

“additional debt [incurred by the plaintiffs] for a term in which they received no academic

credit” (the “plaintiffs’ ‘loans but no credit’ theory”), id. ¶ 106; and (3) the fact that the plaintiffs

“received no credit for the several months of time and work they spent in the Virginia College

program during the Fall 2018 term” (the “plaintiffs’ ‘no credit for time and work’ theory”), id.

¶ 88; see also Pls.’ Opp’n at 12−13 (referring to the plaintiffs’ “lost credits”). The defendants

respond that “[e]ach theory of injury has its own standing deficiency, but the theories [also] share

two fatal standing defects—neither is redressable by this Court, and neither is fairly traceable to

the Secretary’s [April 2018 O]rder.” Defs.’ Reply at 3. The Court will address each of the

plaintiffs’ theories of injury in turn.

A. The Plaintiffs’ “Unlawful and Void ab Initio Loans” Theory

The plaintiffs allege that they were injured by the Secretary’s April 2018 Order because

the Order enabled them to “tak[e] out loans that the Department could not lawfully issue.” Pls.’

Opp’n at 12; see Am. Compl. ¶ 105 (alleging that “any loans issued by the Department for the

purposes of attending [Virginia College and other schools accredited by the Accrediting

Counsel] during the interim recognition period were unlawful and void ab initio”). For the

12
following reasons, the Court concludes that this theory of injury fails both the injury-in-fact and

causation prongs of the standing analysis.

1. Injury-in-Fact

The defendants argue that the plaintiffs’ loans, even if “unlawful and void ab initio,” as

the plaintiffs contend, Am. Compl. ¶ 105, do not constitute an “injury-in-fact” for purposes of

Article III standing because “[the p]laintiffs do not offer any concrete consequences that came

from this alleged injury.” Defs.’ Reply at 15. The Court agrees with the defendants.

For purposes of Article III standing, an injury must “affect [a plaintiff] in a personal and

individual way[,]” Lujan, 504 U.S. at 560 n.1, and “must [ ] be concrete[.]” Spokeo, Inc. v.

Robins, __ U.S. __, 136 S. Ct. 1540, 1548 (2016). To be concrete, an injury must be “direct,

real, and palpable—not abstact[,]” Pub. Citizen, Inc. v. Nat’l Highway Traffic Safety Admin.,

489 F.3d 1279, 1292 (D.C. Cir. 2007), and it also “must be ‘de facto’: that is, it must actually

exist[.]” Spokeo, 136 S. Ct. at 1548 (emphasis in original). Furthermore, “Article III standing

requires a concrete injury even in the context of a statutory violation.” Id. at 1549. Thus,

“[w]hen an alleged statutory violation ‘result[s] in no harm,’ no injury-in-fact exists.” Tate v.

Nat’l Postal Mail Handlers Union Loc. 305, No. 16-cv-2021, 2018 WL 2538445, at *2 (D.D.C.

Apr. 12, 2018) (quoting id. at 1550).

Here, the plaintiffs argue that they have standing because they took on “unlawful and

void ab initio” loans “that, but for the Department’s illegal conduct, could not have been issued

under Title IV.” Pl.’s Opp’n at 13; see also Am. Compl. ¶ 82 (alleging that the plaintiffs “took

on thousands of dollars in Department-issued debt to pay [Virginia College’s] quarterly tuition”).

Regarding their loans, the plaintiffs further allege that

[t]h[is] case . . . raises the questions [ ] whether [the Secretary’s April 2018 Order]
violated the [APA] and, if so, whether loans that the Department issued for tuition

13
 and other expenses at [Educational Corporation] schools during the interim
recognition period are enforceable.

...

In the absence of a valid accreditor, the Department’s provisional certification for
[Education Corporation] schools would have expired on June 12, 2018, eighteen
months after the Department’s final derecognition decision was entered in
December 2016. Those schools therefore would have become ineligible to
receive federal student aid under Title IV [of the Higher Education Act of 1965
(“Title IV”)]. 20 U.S.C. § 1099(c). Because the Department’s decision to restore
[the Accrediting Council’s] accreditation was unlawful, schools accredited by [the
Accrediting Council] remained ineligible to receive federal student aid, and any
loans issued by the Department for the purposes of attending those schools during
the interim recognition period were unlawful and void ab initio.

...

For the reasons explained above, all loans issued to attend [ ] schools [accredited
by the Accrediting Council] during the interim recognition period, including [the
plaintiffs’] loans, are therefore unenforceable.

Id. ¶¶ 94, 105, 112.

These allegations by the plaintiffs, that their loans were “unlawful and void ab initio[,]”

id. ¶ 105, fail to allege an injury that is sufficiently “concrete[.]” Spokeo, 136 S. Ct. at 1549.

Although the plaintiffs’ allegations demonstrate that the loans “affect the plaintiff[s] in a

personal and individual way[,]” Lujan, 504 U.S. at 560 n.1; see, e.g., Am. Compl. ¶ 82 (alleging

that the plaintiffs “took on thousands of dollars in Department-issued debt to pay the quarterly

tuition”); id. ¶ 89 (alleging that Passut “was forced to pay tuition and expenses out[-]of[-]pocket

[at his new school] because he had reached the maximum amount of Department-backed loans

for which he was eligible”), this theory of injury rests on the allegedly “unlawful and void ab

initio” nature of the loans, see, e.g., Am. Compl. ¶ 105 (alleging that the loans were “unlawful

and void ab initio”); id. ¶¶ 112 (arguing that, because the loans are “unlawful and void ab initio,

then they “are [ ] unenforceable”). But, as the defendants correctly note, the plaintiffs have

14
presented no allegations that the allegedly “illegal” nature of the loans—distinct from the

inherent financial obligation associated with the acquisition of any loan—“strip[s] any benefits

from [the p]laintiffs[,]” Defs.’ Reply at 16, or has any “direct, real, and palpable” effects, Pub.

Citizen, 489 F.3d at 1292. See generally Am. Compl. Moreover, the plaintiffs’ Amended

Complaint fails to demonstrate how the allegedly “unlawful and void ab initio” nature of the

plaintiffs’ loans, see id. ¶ 105, “directly infringe[s] upon any of [the p]laintiff[s’ legal] rights[.]”

Massey v. Am. Fed. of Gov’t Emps., 196 F. Supp. 3d 25, 39 (D.D.C. 2016). Rather, the

plaintiffs’ allegations merely establish that the plaintiffs received the benefits that normally

accompany the issuance of student loans—namely, the financial ability to attend an educational

institution.7 See Am. Compl. ¶ 88 (noting “the several months of time and work [that the

plaintiffs] spent in the Virginia College program during the Fall 2018 term”).

Without any allegation that the allegedly unlawful nature of the plaintiffs’ loans resulted

in “any concrete consequence[,]” Hancock v. Urban Outfitters, Inc., 830 F.3d 511, 514 (D.C. Cir.

2016), the Court must conclude that the plaintiffs have not demonstrated an injury-in-fact as to

this theory of injury. Accordingly, the Court concludes that the plaintiffs have not demonstrated

that their allegedly “unlawful and void ab initio” loans, Am. Compl. ¶ 105, constitute an injury-

in-fact.

7
To the extent that the Amended Complaint could be construed to allege that the plaintiffs obtained “unlawful”
loans and were, subsequently, unable to receive credit for the coursework for which those loans were paid, the
plaintiffs explicitly disavowed any connection between their “unlawful and void ab initio loans” theory of injury and
their lack of course credit. See Pls.’ Opp’n at 13 (“[The d]efendants’ APA violations injured [the plaintiffs] and
other members of the proposed class by enabling the Department to issue debt that, but for the Department’s illegal
conduct, could not have been issued under Title IV” and this “injury . . . exists whether or not a particular student-
borrower received credits and regardless of the particular reason a student-borrower may not have received credit.”).
The Court will address the two theories of injury that rest upon the plaintiffs’ failure to receive course credit in more
detail later in this Memorandum Opinion. See infra Section III.B (addressing the plaintiffs’ “loans but no credit”
theory); Section III.C (addressing the plaintiffs’ “no credit for time and work” theory).

15
 2. Causation

Even if the Court agreed with the plaintiffs that the acquisition of their allegedly unlawful

loans constituted an injury-in-fact, the Court would nonetheless be compelled to conclude that

the plaintiffs have failed to show that this injury is “fairly traceable” to the Secretary’s April

2018 Order. 8 Lujan, 504 U.S. at 560–61. The plaintiffs explain their allegations of causation as

follows:

[B]ecause of [the] Secretary[’s] April 2018 [Order], [Virginia]
College . . . remained accredited past June 12, 2018[—the date on which the
temporary extension of accreditation to the Accrediting Council (and, thereby, the
validity of the accreditations issued by the Accrediting Council) would have
lapsed without the Secretary’s April 2018 Order]. After receiving temporary
recognition from [the] Secretary [ ], [the Accrediting Council] reviewed the
findings by ACCET, but did not follow ACCET in refusing to accredit Virginia
College at that time. Instead, it 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. After that meeting, [the
Accrediting Council] again extended Virginia College’s show-cause directive,
thereby continuing its accreditation. For many of the areas in which ACCET had
found Virginia College non-compliant, [the Accrediting Council] found that the
alleged deficiency [did] not result in non-compliance with [the] standards [of the
Accrediting Council].

These actions enabled Virginia College to enroll students, including [the
plaintiffs] for the Fall 2018 term—and allowed the Department to issue loans to
them. In [the plaintiffs’] cases, they took on thousands of dollars in Department-
issued debt to pay the quarterly tuition. If Virginia College had not again been
able to claim accredited status, or eligibility for federal student aid, [the plaintiffs]
would not have enrolled for the Fall 2018 term.

Am. Compl. ¶¶ 81–82 (internal quotation marks and footnotes omitted).

To satisfy the causation requirement of Article III standing, a plaintiff “must demonstrate

‘a causal connection between the injury and the conduct complained of’ such that the ‘injury in

8
The Court acknowledges that this argument was not raised by the defendants. See generally Defs.’ Mem.
However, “courts . . . have an independent obligation to determine whether subject-matter jurisdiction exists, even in
the absence of a challenge from any party.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006); see also Fed. R.
Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss
the action.”); Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39, 41 (D.C. Cir. 2000) (“When there is doubt about a
party’s constitutional standing, the court must resolve the doubt, sua sponte if need be.”).

16
fact’ is fairly traceable ‘to the challenged action of the defendant,’ and not the result of ‘the

independent action of some third party not before the [C]ourt.’” Ctr. for Bio. Diversity v. Envtl.

Prot. Agency, 861 F.3d 174, 182 (D.C. Cir. 2017) (quoting Lujan, 504 U.S. at 560). “[F]air

traceability turns on the causal nexus between [an] agency action and the asserted injury[,]”

Freedom Republicans, Inc. v. Fed. Election Comm’n, 13 F.3d 412, 418 (D.C. Cir. 1994), and

requires a plaintiff to demonstrate “a substantial probability that the substantive agency

action . . . created a demonstrable risk, or caused a demonstrable increase in an existing risk, of

injury to the particularized interests of the plaintiff[.]” Fla. Audubon Soc’y v. Bentsen, 94 F.3d

658, 669 (D.C. Cir. 1996). One such example is that “self-inflicted harm[s are] not fairly

traceable to the challenged government conduct.” Grocery Mfrs. Ass’n v. Envtl. Prot. Agency,

693 F.3d 169, 177 (D.C. Cir. 2012); see also Ellis v. Comm’r of Internal Revenue Serv., 67 F.

Supp. 3d 325, 336 (D.D.C. 2014) (noting that “it is well-settled in this jurisdiction that self-

inflicted injuries—injuries that are substantially caused by the plaintiff’s own conduct—sever the

causal nexus needed to establish standing”).

Here, the plaintiffs’ alleged injury—the allegedly “unlawful and void ab initio” loans

they acquired from the Department in order to attend Virginia College for the Fall 2018

semester—is a “self-inflicted harm[]” that is “not fairly traceable to the” Secretary’s April 2018

Order. Grocery Mfrs. Ass’n, 693 F.3d at 177. As the Complaint acknowledges, the plaintiffs

themselves obtained the loans that now constitute their alleged injuries. See Am. Compl. ¶ 82

(acknowledging that the plaintiffs “took on thousands of dollars in Department-issued debt to

pay the quarterly tuition”); see also Pls.’ Opp’n at 12 (arguing that the “[p]laintiffs adequately

allege that they were injured by taking out loans that the Department could not lawfully issue”).

Despite the plaintiffs’ voluntary actions, they argue that their alleged injury was caused by the

17
Secretary’s April 2018 Order because “[i]f Virginia College had not again been able to claim

accredited status, or eligibility for federal student aid, [the plaintiffs] would not have enrolled for

the Fall 2018 term[,]” Am. Compl. ¶ 82, and would not have acquired “debt that, but for the

Department’s illegal conduct [in issuing the April 2018 Order], could not have been issued under

Title IV[,]” Pls.’ Opp’n at 13.

The Court acknowledges that the Secretary’s April 2018 Order is part of the background

against which the plaintiffs’ alleged injury occurred—as was the Accrediting Council’s failure to

ensure that Virginia College met accreditation standards, see Am. Compl. ¶ 81; Virginia

College’s failure to secure accreditation from other accreditors, see id. ¶ 80; Virginia College’s

failure to make improvements to ensure that it retained accreditation through the Accrediting

Council, see id. ¶¶ 81, 84; and the Accrediting Council’s two decisions postponing the decision

to withdraw accreditation from Virginia College until December 4, 2018, id. ¶ 81. See Defs.’

Reply at 11 (noting that the “[p]laintiffs claim [that] this long chain of events[, culminating in the

closure of Virginia College,] was made possible only because the Secretary’s [April 2018 O]rder

allowed Virginia College to keep its accreditation and to therefore stay open”).

However, “the only real effect” of the Secretary’s April 2018 Order, which temporarily

extended the accreditation of the Accrediting Council, “[wa]s to provide [students] the option” to

attend schools accredited by the Accrediting Council for the Fall 2018 term. Grocery Mfrs.

Ass’n, 693 F.3d at 177. Because of the Secretary’s April 2018 Order, the Accrediting Council

retained the ability to accredit Virginia College and other schools, see Am. Compl. ¶ 81, which

thereby gave the plaintiffs “the option[,]” Grocery Mfrs. Ass’n, 693 F.3d at 177, of attending

those schools and acquiring loans to do so, see Am. Compl. ¶ 82. “To the extent” that the

plaintiffs chose “that option voluntarily, any injury they incur[red] as a result is a ‘self-inflicted

18
harm’ not fairly traceable to the challenged government conduct.” Grocery Mfrs. Ass’n, 693

F.3d at 177 (concluding that the group of plaintiff petroleum refiners and importers had not

demonstrated standing to challenge the agency’s approval of the use of a particular gasoline-

ethanol blend because “the only real effect of [the agency’s action] is to provide fuel

manufacturers the option to introduce [the] new fuel[ and t]o the extent the petroleum group’s

members implement that option voluntarily, any injury they incur as a result is a ‘self-inflicted

harm’ not fairly traceable to the challenged government conduct”); see also Mirv Holdings, LLC

v. U.S. Gen. Servs. Admin., 454 F. Supp. 3d 33, 44 (D.D.C. 2020) (Walton, J.) (concluding that

“any injury suffered by the plaintiff [wa]s substantially caused by the plaintiff’s own conduct,”

when “[t]he plaintiff knew of the [agency’s] position that the proposed inclusion of dwelling

units [on a property wa]s inconsistent with the acceptable uses [for this property] . . . , but

nevertheless chose to proceed with [the plaintiff’s] development plans, which included the

dwelling units, despite having knowledge regarding the [agency’s] position” (internal quotation

marks omitted)). 9

The plaintiffs’ acquisition of their loans to attend Virginia College for the Fall 2018

semester was “clearly independent of agency action[,]” Scahill v. District of Columbia, 271 F.

Supp. 3d 216, 230 (D.D.C. 2017), and therefore “break[s] the causal chain[,]” Petro-Chem

Processing, Inc. v. Envtl. Prot. Agency, 866 F.2d 433, 438 (D.C. Cir. 1989), between the

Secretary’s April 2018 Order and the plaintiff’s loans. Accordingly, the Court concludes that, to

9
Moreover, the Court notes that the plaintiffs allege that “[p]rior to [the Secretary’s April 2018 Order], [Virginia]
College’s then-President repeatedly said that [the] Secretary [ ] would reverse [the Accrediting Council’s]
derecognition” and “in or about February 2018, Virginia College held town halls to assure students that it would
remain accredited.” Am. Compl. ¶ 79. Therefore, according to the plaintiffs’ allegations, by the time the Secretary
issued his April 2018 Order, students at Virginia College had access to information that (1) the Accrediting
Council’s own accreditation; (2) its corresponding ability to issue accreditation to Virginia College; and (3) Virginia
College’s accreditation were, at minimum, not foregone conclusions. Accordingly, when the plaintiffs acquired
their loans to attend Virginia College for the Fall 2018 semester, they did so against a backdrop of uncertainty as to
whether Virginia College would retain its accreditation.

19
the extent that the plaintiffs allege that they acquired loans that were “unlawful and void ab

initio[,]” Am. Compl. ¶ 105, their injury is neither an injury-in-fact nor fairly traceable to the

Secretary’s April 2018 Order for purposes of Article III standing.

B. The Plaintiffs’ “Loans Without Credit” Theory

The Court now turns to the plaintiffs’ second theory of injury: the Secretary’s April 2018

Order, on which the plaintiffs “relied . . . in deciding to enroll or re-enroll in [Educational

Corporation] Schools accredited by [the Accrediting Council,] . . . caused harm to [the plaintiffs]

by saddling them with additional debt for a term in which they received no academic credit.”

Am. Compl. ¶ 106. The defendants argue that this “injury is not fairly traceable to the

Secretary’s [April 2018 O]rder . . . because the independent acts of the Accrediting [Council]

allowed Virginia College to stay open, thereby causing the harm.” Defs.’ Reply at 10. For the

following reasons, the Court agrees with the defendants that the plaintiffs have not adequately

alleged causation as to the defendants for their “loans without credit” theory of injury.

As the basis for this theory of injury, the plaintiffs advance the following chain of events.

The plaintiffs allege that they “relied on” the Secretary’s April 2018 Order in “deciding to enroll

or re-enroll” at Virginia College for the Fall 2018 term, Am. Compl. ¶ 106, because, without the

Order, they would have been unable to obtain federal loans to attend an unaccredited school, see

Pls.’ Opp’n at 13 (noting that “students must attend an eligible institution to be eligible for Title

IV loans”). Then, the plaintiffs allege that because the Secretary’s April 2018 Order allowed the

Accrediting Council to maintain its accreditation in order for it to, in turn, accredit Virginia

College, the plaintiffs took out loans from the Department and attended Virginia College,

thereby injuring them by “saddling them with additional debt for a term in which they received

no academic credit.” Am. Compl. ¶ 106. And, according to the plaintiffs, the reason they

20
“received no academic credit” for the Fall 2018 term is that “the closure of Virginia College’s

Richmond campus on December 18, [2018,]” precluded them from “be[ing] able to finish their

fieldwork[.]” Id. ¶ 87.

As alleged, this theory of injury stems from the timing of the loss of Virginia College’s

accredited status and its subsequent closure. Pursuant to this theory, if Virginia College had

closed after the date when the plaintiffs’ “fieldwork requirements for their degree [ ] were [ ]

scheduled to be completed[,]” id. ¶ 83, the plaintiffs “would have been able to finish their

fieldwork, and therefore [would have] receive[d] credit for the Fall 2018 term[,]” id. ¶ 87.

Similarly, if Virginia College had closed prior to the Fall 2018 term because it “had not again

been able to claim accredited status, or eligibility for federal student aid, [the plaintiffs] would

not have enrolled for the Fall 2018 term[,]” id. ¶ 82, and therefore, they would not have incurred

the “additional debt[.]” Id. ¶ 106.

However, as the defendants correctly note, “it was the Accrediting [Council’s]

independent action[s] that kept Virginia College accredited until December 4, 2018, when the

Accrediting [Council] withdrew Virginia College’s accreditation.” Defs.’ Reply at 11.

According to the Amended Complaint, the Accrediting Council made two decisions that delayed

its withdrawal of accreditation from Virginia College until the end of the Fall 2018 term, thereby

allowing students, including the plaintiffs, to acquire loans to attend Virginia College for the

semester: (1) “[a]fter receiving temporary recognition from [the] Secretary [ ], [the Accrediting

Council] reviewed the findings by ACCET . . . [and] 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[;]” and (2) at that August 2018 meeting, the Accrediting

Council “again extended Virginia College’s show-cause directive, thereby continuing [the

21
College’s] accreditation.” Am. Compl. ¶ 81. Furthermore, the plaintiffs make no allegation that,

“[o]n December 4, 2018, [when the Accrediting Council] withdrew accreditation from Virginia

College[,]” the Accrediting Council was not acting upon its own independent decision. Id. ¶ 84.

These independent decisions by the Accrediting Council “sever the causal nexus needed

to establish standing.” Ellis v. Comm’r of Internal Revenue Serv., 67 F. Supp. 3d 325, 336

(D.D.C. 2014), aff’d, 622 F. App’x 2 (D.C. Cir. 2015). If the Accrediting Council had rescinded

Virginia College’s accreditation prior to the Fall 2018 term, the plaintiffs’ injury, according to

their allegations, would not have occurred, because the issuance of loans to attend an

unaccredited school would contravene Title IV. See Pls.’ Opp’n at 13 (noting that “students

must attend an eligible institution to be eligible for Title IV loans”); Am. Compl. ¶ 82 (alleging

that “[i]f Virginia College had not again been able to claim accredited status, or eligibility for

federal student aid, [the plaintiffs] would not have enrolled for the Fall 2018 term”). Similarly, if

the Accrediting Council had decided to wait until after the plaintiffs completed their fieldwork to

withdraw Virginia College’s accreditation, the plaintiffs would have received their credit,

rendering their injury, as alleged, non-existent. See id. ¶ 87 (alleging that “[b]ut for the closure

of Virginia College’s Richmond campus on December 18, [2018, the plaintiffs] would have been

able to finish their fieldwork, and therefore receive credit for the Fall 2018 term”). Accordingly,

the independent actions taken by the Accrediting Council sever the requisite causal link between

the Secretary’s April 2018 Order and the plaintiffs’ alleged injury. 10

10
The Court notes that “harm caused directly by the actions of a third party [may still be] fairly traceable to the
defendant[,]” depending upon “the directness of the link between the defendant’s challenged action and the alleged
injury,” and “the incentive structure to which the intervening third party, who directly causes the injury, is
responding.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 679 (D.C. Cir. 1996). Here, however, the plaintiffs have
provided no allegations to support the conclusion that the Secretary’s April 2018 Order was responsible for the
particular date on which Virginia College closed. The plaintiffs make no allegation that these two decisions by the
Accrediting Council to delay the rescission of accreditation from Virginia College were “produced by determinative
or coercive effect upon the action of” the Department. Bennett v. Spear, 520 U.S. 154, 169 (1997). Rather, the
(continued . . .)

22
 In sum, because the plaintiffs make no allegation that the Secretary’s April 2018 Order

impacted the Accrediting Council’s decision to withdraw Virginia College’s accreditation on

December 4, 2018, the Court concludes that the plaintiffs have failed to adequately allege that

their injury of “additional debt for a term in which they received no academic credit[,]” Am.

Compl. ¶ 106, is “fairly traceable” to the Secretary’s April 2018 Order, Friends of the Earth, Inc.

v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180 (2000). Accordingly, the Court finds

that the plaintiffs lack Article III standing under their second theory of injury.

C. The Plaintiffs’ “No Credit for Time and Work” Theory

Finally, in their Amended Complaint, the plaintiffs appear to allege that they have also

been injured by being unable to receive credit for the work they completed at Virginia College

during the Fall 2018 semester. See Am. Compl. ¶ 88 (alleging that the plaintiffs “received no

credit for the several months of time and work they spent in the Virginia College program during

the Fall 2018 term”). However, as the defendants correctly note, see Defs.’ Reply at 3, it appears

(. . . continued)
plaintiffs only allege that the Department’s temporary extension of the Accrediting Council’s accreditation enabled
the Accrediting Council to continue operating and, consequently, to continue making such decisions. See generally
Am. Compl. ¶¶ 81–86. The plaintiffs similarly make no allegation that the Secretary’s April 2018 Order
incentivized the Accrediting Council to withdraw Virginia College’s accreditation on December 4, 2020, or not to
withdraw Virginia College’s accreditation prior to the Fall 2018 term. See generally id. Although “some cases have
held that plaintiffs have standing to challenge government action on the basis of injuries caused by regulated third
parties where the record presented substantial evidence of a causal relationship between the government policy and
the third-party conduct, leaving little doubt as to causation[,]” here the attenuated chain presented by the plaintiffs
does not present such “substantial evidence” and leaves the Court with more than a “little doubt as to causation[.]”
Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 941 (D.C. Cir. 2004), abrogation on other grounds
recognized by Perry Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C. Cir. 2017).

The Court further notes that the District of Columbia Circuit “has recognized that a ‘federal court may find that a
party has standing to challenge government action that permits or authorizes third-party conduct that would
otherwise be illegal in the absence of the [g]overnment’s action[,]’” Marouf v. Azar, 391 F. Supp. 3d 23, 34 (D.D.C.
2019) (quoting Nat’l Wresting Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 940 (D.C. Cir. 2004), abrogation on
other grounds recognized by Perry Capital LLC v. Mnuchin, 864 F.3d 591, 621 (D.C. Cir. 2017)). However, this
line of authority is inapposite here because, in this case, the plaintiffs make no allegation that the Accrediting
Council’s withdrawal of Virginia College’s accreditation on December 4, 2018, “would otherwise be illegal” in the
absence of the Secretary’s April 2018 Order. Id.

23
that the plaintiffs essentially abandon this theory of injury in their opposition, instead arguing

that their injury comes from their loans, see Pls.’ Opp’n at 13 (stating that the “[p]laintiffs have

adequately pleaded [an] injury[-]in[-]fact[,]” whether their injury “is properly construed as the

financial obligations imposed by their student loans, or [as the loans] in conjunction with their

lost credits”).

To the extent that the plaintiffs maintain the theory that they were injured by

“[r]eceiv[ing] no credit for the several months of time and work they spent in the Virginia

College program during the Fall 2018 term[,]” Am. Compl. ¶ 88, this theory fails for the same

reasons explained above regarding the plaintiffs’ theory that they have “debt for a term in which

they received no academic credit[,]” id. ¶ 106; see supra section III.B. The plaintiffs’ failure to

receive credit stems from the decision of the Accrediting Council to withdraw Virginia College’s

accreditation on December 4, 2018, prior to the plaintiffs’ completion of their coursework.

According to the plaintiffs, they were both scheduled to complete their new fieldwork

placements, which was the “only [coursework] needed to . . . earn their degrees[,]” by the end of

January at the latest. Pls.’ Opp’n at 19 (arguing that Kaiser’s placement “anticipated that [he]

would work there into January to fulfill his eight-week requirement” and that “Passut . . . was

also scheduled to complete his fieldwork in January 2019”). Accordingly, it is the date on which

the Accrediting Council withdrew Virginia College’s accreditation—rather than the withdrawal

of accreditation itself or any other reason—that prevented the plaintiffs from “finish[ing] their

field work and receiv[ing] credit for the term by the time the school closed[.]” Id. at 13. If the

Accrediting Council had waited to withdraw Virginia College’s accreditation until the end of

January 2019, the plaintiffs would have received credit for the Fall 2018 term. See Pls.’ Opp’n

at 20 (arguing that the “[p]laintiffs’ inability to obtain credit for [the] Fall 2018 [term] stemmed

24
entirely from the abrupt closure of their school”). Similarly, if the Accrediting Council had

withdrawn Virginia College’s accreditation prior to the Fall 2018 term, the plaintiffs would not

have enrolled for the Fall 2018 term and would not have expended any “time and work[,]” Am.

Compl. ¶ 106. See Am. Compl. ¶ 82 (alleging that “[i]f Virginia College had not again been able

to claim accredited status, or eligibility for federal student aid, [the plaintiffs] would not have

enrolled for the Fall 2018 term”). But the plaintiffs present no allegation that the date of

withdrawal was in any measure impacted by the Secretary’s April 2018 Order, rather than

independent, discretionary decisions of the Accrediting Council.

Without such allegations, the Court cannot conclude that the plaintiffs have adequately

alleged that their failure to receive credit for their time and work is “fairly traceable” to the

Secretary’s April 2018 Order, Friends of the Earth, 528 U.S. at 180. Therefore, in accordance

with its above conclusions, the Court determines that the plaintiffs also lack standing to the

extent that they allege that they “received no credit for the . . . time and work they spent in the

Virginia College program during the Fall 2018 term[.]” Am. Compl. ¶ 88.

IV. CONCLUSION

For the foregoing reasons, the Court concludes that it must grant in part and deny as moot

in part the defendants’ motion to dismiss. The Court grants the defendants’ motion to the extent

it asserts that the Court lacks jurisdiction over this case because the plaintiffs lack standing to

pursue this matter against the defendants. The motion is denied as moot in all other respects.

Finally, because the Court lacks jurisdiction to resolve the plaintiffs’ pending motion for class

certification, the Court also concludes that it must dismiss as moot the plaintiffs’ motion for class

certification.

25
 SO ORDERED this 21st day of May, 2021. 11

REGGIE B. WALTON
United States District Judge

11
The Court will contemporaneously issue an Order consistent with this Memorandum Opinion.

26