Consumer Financial Protection Bureau v. Accrediting Council for Independent Colleges & Schools

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 2, 2017 Decided April 21, 2017
No. 16-5174
CONSUMER FINANCIAL PROTECTION BUREAU,
APPELLANT
v.
ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND
SCHOOLS,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:15-cv-01838)
Lawrence DeMille-Wagman, Senior Litigation Counsel,
Consumer Financial Protection Bureau, argued the cause for
appellant. With him on the briefs was John R. Coleman,
Deputy General Counsel.
Allyson B. Baker argued the cause for appellee Accrediting
Council For Independent Colleges and Schools. With her on
the brief were Andrew Hernacki, Benjamin E. Horowitz,
Kimberly Culp Cloyd, and Kenneth J. Ingram.
2
Andrew J. Pincus, Ori Lev, Stephen C.N. Lilley, Matthew
A. Waring, Kathryn Comerford Todd, and Steven P. Lehotsky
were on the brief for amicus curiae The Chamber of Commerce
of the United States of America in support of appellee.
Michael C. Gartner was on the brief for amicus curiae
Accrediting Council for Continuing Education & Training, Inc.
(“ACCET”), et al. in support of appellee.
Before: HENDERSON and WILKINS, Circuit Judges, and
SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
SENTELLE.
SENTELLE, Senior Circuit Judge: The Consumer Financial
Protection Bureau (“CFPB” or the “Bureau”) issued a civil
investigative demand to the Accrediting Council for
Independent Colleges and Schools (“ACICS”), a non-profit
organization that accredits for-profit colleges. The civil
investigative demand’s “Notification of Purpose” stated that
the CFPB sought information relating to “unlawful acts and
practices in connection with accrediting for-profit colleges.”
When ACICS refused to comply, the CFPB filed a petition to
enforce the civil investigative demand. The district court
denied the petition. Because the civil investigative demand did
not comply with the governing statute, see 12 U.S.C.
§ 5562(c)(2), we affirm.
I.
While the Department of Education does not accredit
for-profit colleges, the Secretary of Education recognizes
national accrediting agencies that set accreditation standards
for those for-profit institutions. See Prof’l Massage Training
Ctr., Inc. v. Accreditation All. of Career Schs. & Colls., 781
3
F.3d 161, 171 (4th Cir. 2015); Urquilla-Diaz v. Kaplan Univ.,
780 F.3d 1039, 1044 (11th Cir. 2015); see also 20 U.S.C.
§ 1099b; 34 C.F.R. §§ 602.1–602.50. Indeed, the term
“[a]ccredited” is defined in the Department’s regulations as
“[t]he status of public recognition that a nationally recognized
accrediting agency grants to an institution or educational
program that meets the agency’s established requirements.” 34
C.F.R. § 600.2; see also id. § 602.3. Recognized accrediting
agencies are intended to be “reliable authorities regarding the
quality of education or training offered by the institutions or
programs they accredit.” Id. § 602.1(a); see also 20 U.S.C.
§§ 1001(c), 1099b(a). Importantly, students at accredited
for-profit colleges are eligible to receive federal student aid
funding. See 20 U.S.C. § 1002(b)(1)(D); 34 C.F.R.
§ 600.5(a)(6); Career Educ., Inc. v. Dep’t of Educ., 6 F.3d 817,
817–18 (D.C. Cir. 1993); see also Urquilla-Diaz, 780 F.3d at
1043–44.
ACICS is a non-profit organization that accredits for-profit
colleges in the United States. A council consisting of fifteen
commissioners carries out the organization’s accreditation
functions, while the organization’s president, who also serves
as the Chief Executive Officer, oversees the day-to-day
operations. The Secretary has recognized ACICS as a national
accreditor since 1956, although the Secretary withdrew
ACICS’s status as a recognized accreditor in 2016.
The most important aspect of ACICS’s accreditation
process is the “peer review” component, which involves
volunteer evaluators from ACICS member institutions and
non-member institutions reviewing other institutions. The
confidential accreditation process includes a self-evaluation by
the institution, an on-site visit, a review of the institution’s
operations, and a written report from the evaluators. After
determining whether the institution complies with ACICS’s
4
accrediting standards, the council makes a final accrediting
decision. Relevant to this litigation, ACICS asserts that, as an
accrediting agency, it plays no role in the student loan process.
The CFPB has investigated for-profit colleges for
deceptive practices in connection with their student-lending
activities. See, e.g., CFPB v. Corinthian Colls., Inc., No.
1:14-cv-7194, 2015 WL 10854380 (N.D. Ill. Oct. 27, 2015);
CFPB v. ITT Educ. Servs., Inc., No. 1:14-cv-292, 2015 WL
1013508 (S.D. Ind. Mar. 6, 2015). On August 25, 2015, the
CFPB issued a civil investigative demand (“CID”) to ACICS.
The CID’s “Notification of Purpose” stated:
The purpose of this investigation is to determine
whether any entity or person has engaged or is
engaging in unlawful acts and practices in
connection with accrediting for-profit colleges,
in violation of sections 1031 and 1036 of the
Consumer Financial Protection Act of 2010, 12
U.S.C. §§ 5531, 5536, or any other Federal
consumer financial protection law. The purpose
of this investigation is also to determine
whether Bureau action to obtain legal or
equitable relief would be in the public interest.
The CID included two interrogatories seeking to identify:
(1) “all post-secondary educational institutions that [ACICS]
has accredited since January 1, 2010,” and (2) “all individuals
affiliated with [ACICS] who conducted any accreditation
reviews since January 1, 2010” for twenty-one enumerated
institutions. The CID also informed ACICS that a company
representative must be made available to provide oral
testimony on ACICS’s “policies, procedures, and practices
relating to the accreditation of” seven enumerated institutions.
5
After receiving the CID, ACICS’s counsel conferred with
the CFPB to discuss compliance. These discussions proved
fruitless, however, and ACICS subsequently petitioned the
CFPB to set aside or modify the CID. See 12 U.S.C. § 5562(f);
12 C.F.R. 1080.6(e). The CFPB’s Director, Richard Cordray,
denied ACICS’s petition on October 8, 2015, and ordered
ACICS to meet and confer with the CFPB. The CFPB denied
ACICS’s motion for reconsideration of that denial on October
27, 2015, and on October 29, 2015, filed the petition for
enforcement that is the subject of this appeal. See 12 U.S.C.
§ 5562(e).
The Bureau argued in its petition that it had “reason to
believe” that ACICS, in its capacity as an accreditor, possessed
“information relevant to the Bureau’s investigation” into
“whether any entity or other person has engaged or is engaging
in unlawful acts and practices in connection with accrediting
for-profit colleges, in violation of the [Consumer Financial
Protection Act], or any other Federal consumer financial law.”
ACICS opposed the petition on a number of grounds, including
that the Bureau’s investigation into the accreditation of for-
profit colleges was outside the scope of its authority.
The district court denied the petition. CFPB v. Accrediting
Council for Indep. Colls. & Schs., 183 F. Supp. 3d 79, 80
(D.D.C. 2016). The court framed the issue before it as a single
question: “Did the CFPB have the statutory authority to issue
the CID in question?” Id. at 82. “Unfortunately for the CFPB,”
the court held, “the answer is no.” Id. After reviewing the
CFPB’s statutory authority, see id. at 82–83, the court noted
that the laws enforced by the CFPB do not “address, regulate,
or even tangentially implicate the accrediting process of
for-profit colleges,” id. at 83. The court concluded that, “at
first blush, the CID’s statement of purpose appears to concern
a subject matter that is not within the statutory jurisdiction of
6
the CFPB.” Id. Based on the Notification of Purpose and the
requests, the court further determined that the CFPB’s
investigation “clearly . . . targets the accreditation process
generally,” which “the CFPB was never empowered to do.” Id.at 83–84. Because the CFPB “plow[ed] head long into fields
not clearly ceded to [it] by Congress,” the court denied the
petition. Id. at 84. The CFPB appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. See
FTC v. Invention Submission Corp., 965 F.2d 1086, 1089 (D.C.
Cir. 1992); FTC v. Texaco, Inc., 555 F.2d 862, 873 n.21 (D.C.
Cir. 1977) (en banc).
II.
Congress enacted the Dodd-Frank Wall Street Reform and
Consumer Protection Act (“Dodd-Frank Act”) in the wake of
the financial crisis of 2008 and 2009. State Nat’l Bank of Big
Spring v. Lew, 795 F.3d 48, 51 (D.C. Cir. 2015) (citing Pub. L.
No. 111-203, 124 Stat. 1376 (2010)). Title X of the
Dodd-Frank Act—the Consumer Financial Protection Act
(“CFPA”)—established the Consumer Financial Protection
Bureau to “regulate the offering and provision of consumer
financial products or services under the Federal consumer
financial laws,” 12 U.S.C. § 5491(a), and “to implement
and . . . enforce Federal consumer financial law,” id. § 5511(a);
see also id. §§ 5492(a), 5511(b)–(c). The “Federal consumer
financial law” that the CFPB enforces includes the CFPA and
eighteen pre-existing consumer protection statutes. Id.
§ 5481(12), (14); Morgan Drexen, Inc. v. CFPB, 785 F.3d 684,
686–87 (D.C. Cir. 2015). Relevant to our analysis, the CFPA
prohibits “unfair, deceptive, or abusive act[s] or practice[s]
under Federal law in connection with any transaction with a
consumer for a consumer financial product or service, or the
offering of a consumer financial product or service.” 12 U.S.C.
7
§ 5531(a); see also id. § 5536(a)(1)(B). “Consumer financial
product[s] or service[s]” include consumer loans and debt
collection activities. See id. § 5481(5), (15).
The CFPA vests the Bureau with broad “rulemaking,
supervisory, investigatory, adjudicatory, and enforcement
authority . . . .” Morgan Drexen, 785 F.3d at 687 (citing 12
U.S.C. §§ 5512(b), 5514–5516, 5562–5564). One of the
CFPB’s “primary functions” is to “supervis[e] covered persons
for compliance with Federal consumer financial law, and tak[e]
appropriate enforcement action to address violations of Federal
consumer financial law[.]” 12 U.S.C. § 5511(c)(4). Pursuant
to its investigative authority, the Bureau may issue CIDs
requiring the production of documents and oral testimony from
“any person” that it believes may be in possession of “any
documentary material or tangible things, or may have any
information, relevant to a violation” of the laws that the Bureau
enforces. Id. § 5562(c)(1); see also 12 C.F.R. § 1080.6. CIDs
allow the Bureau to investigate and collect information “before
the institution of any proceedings.” 12 U.S.C. § 5562(c)(1).
Each CID must “state the nature of the conduct constituting the
alleged violation which is under investigation and the provision
of law applicable to such violation.” Id. § 5562(c)(2); see also
12 C.F.R. § 1080.5. Because “CIDs are not self-enforcing,”
John Doe Co. v. CFPB, 849 F.3d 1129, 1131 (D.C. Cir. 2017),
the CFPB must file a petition in federal court to enforce a CID
if a recipient refuses to comply, 12 U.S.C. § 5562(e)(1).
III.
A district court’s decision on a petition to enforce an
administrative subpoena is reviewed for abuse of discretion,
but the legal standard applied by the district court is reviewed
de novo. See FTC v. Boehringer Ingelheim Pharm., Inc., 778
F.3d 142, 148 (D.C. Cir. 2015); see also McLane Co. v. EEOC,
8
No. 15-1248, ___ S. Ct. ___, 2017 WL 1199454, at *6, *7 n.3
(U.S. Apr. 3, 2017).
As noted, the Bureau may issue CIDs to obtain
information relevant to potential violations of the laws it
enforces before initiating any proceedings. 12 U.S.C.
§ 5562(c); 12 C.F.R. § 1080.6. We have treated CIDs as a form
of administrative subpoena. See FTC v. Ken Roberts Co., 276
F.3d 583, 584–87 (D.C. Cir. 2001); Invention Submission, 965
F.2d at 1087; see also United States v. Markwood, 48 F.3d 969,
975–76 (6th Cir. 1995). “Administrative agencies wield broad
power to gather information through the issuance of
subpoenas.” Resolution Trust Corp. v. Thornton, 41 F.3d 1539,
1544 (D.C. Cir. 1994). Pursuant to their “power of
inquisition,” agencies may use subpoenas to “investigate
merely on suspicion that the law is being violated, or even just
because [they] want[] assurance that it is not.” United States v.
Morton Salt Co., 338 U.S. 632, 642–43 (1950); see also Okla.
Press Publ’g Co. v. Walling, 327 U.S. 186, 216 (1946); SEC v.
Arthur Young & Co., 584 F.2d 1018, 1023–24 (D.C. Cir. 1978);
Texaco, 555 F.2d at 875.
Courts play a limited role in subpoena enforcement
proceedings. U.S. Int’l Trade Comm’n v. ASAT, Inc., 411 F.3d
245, 253 (D.C. Cir. 2005); Texaco, 555 F.2d at 871–72. In
determining whether to enforce a CID, courts consider only
whether “[(1)] the inquiry is within the authority of the agency,
[(2)] the demand is not too indefinite and [(3)] the information
sought is reasonably relevant.” Ken Roberts, 276 F.3d at 586(quoting Morton Salt, 338 U.S. at 652); see also United States
v. Powell, 379 U.S. 48, 57–58 (1964); Arthur Young, 584 F.2d
at 1023–24. Courts must also ensure that subpoenas are not
“unduly burdensome or unreasonably broad.” Texaco, 555
F.2d at 881–82; see also Arthur Young, 584 F.2d at 1031–33.
Courts generally defer to an agency’s interpretation of the
9
scope of its own investigation. See FTC v. Church & Dwight
Co., 665 F.3d 1312, 1315–16 (D.C. Cir. 2011); Dir., Office of
Thrift Supervision v. Vinson & Elkins, LLP, 124 F.3d 1304,
1307 (D.C. Cir. 1997). Thus, “when the information sought
falls within the purview of the regulatory agency’s authority,”
judicial review of an administrative subpoena typically results
in enforcement. FEC v. Machinists Non-Partisan Political
League, 655 F.2d 380, 385–86 (D.C. Cir. 1981) (citations
omitted).
But there are real limits on any agency’s subpoena power.
Ken Roberts, 276 F.3d at 586; Arthur Young, 584 F.2d at 1023–
24. As an initial matter, the deference courts afford agencies
does not “eviscerate the independent role which the federal
courts play in subpoena enforcement proceedings.” Machinists
Non-Partisan Political League, 655 F.2d at 386; see also
ASAT, 411 F.3d at 254. The statutory power to enforce CIDs
in the district courts, see 12 U.S.C. § 5562(e), entrusts courts
with the authority and duty not to rubber-stamp the Bureau’s
CIDs, but to adjudge their legitimacy, see FTC v.
Owens-Corning Fiberglas Corp., 626 F.2d 966, 973–74 (D.C.
Cir. 1980). As we have stated, “federal courts stand guard . . .
against abuses of the[] subpoena-enforcement processes . . . .”
Arthur Young, 584 F.2d at 1024 & n.39. A court’s role in
enforcement proceedings, while limited, “is neither minor nor
ministerial.” Ken Roberts, 276 F.3d at 587. Otherwise put,
“while the court’s role . . . is narrow . . . within its confines it
is potent[.]” Arthur Young, 584 F.2d at 1024 n.39.
Agencies are also not afforded “unfettered authority to cast
about for potential wrongdoing . . . .” In re Sealed Case
(Admin. Subpoena), 42 F.3d 1412, 1418 (D.C. Cir. 1994).
Accordingly, courts will not enforce a CID when the
investigation’s subject matter is outside the agency’s
jurisdiction. See Morton Salt, 338 U.S. at 652; Ken Roberts,
10
276 F.3d at 586–87; Machinists Non-Partisan Political
League, 655 F.2d at 386. Nor will they enforce a demand
“where there is ‘too much indefiniteness or breadth’ in the
items requested.” Machinists Non-Partisan Political League,
655 F.2d at 385 (quoting Okla. Press, 327 U.S. at 208–09). In
extraordinary circumstances, a court also may inquire into
allegations that an agency is using an administrative subpoena
for an improper purpose. See Powell, 379 U.S. at 58;
Resolution Trust Corp. v. Frates, 61 F.3d 962, 965 (D.C. Cir.
1995).
IV.
The district court’s memorandum opinion supporting its
denial of the CFPB’s petition for enforcement discusses
broadly the authority of the Bureau to conduct the investigation
in which the CID was issued. The court addressed ACICS’s
argument that “the CFPB is attempting to conduct an
investigation outside its statutory authority . . . .” 183 F. Supp.
3d at 82. Ultimately, the court concluded that “the CFPB lacks
authority to investigate the process for accrediting for-profit
schools . . . .” Id. at 84. Before us, the parties largely argue the
case in equally broad terms. However, as the district court
rightly observed, the issue before that court, and now this one,
is a single question: “Did the CFPB have the statutory authority
to issue the CID in question?” Id. at 82. Because we can easily
answer the issue on a narrower basis, and because the invalidity
of the CID makes it unnecessary to reach the broad
determination of the Bureau’s authority to investigate the area
of accreditation at all, we will not reach the broad question
answered by the district court. Rather, we will confine our
analysis to the invalidity of this particular CID.
An administrative agency’s authority to issue subpoenas
“is created solely by statute.” Peters v. United States, 853 F.2d
11692, 696 (9th Cir. 1988). Thus, before analyzing whether the
Bureau’s investigation is “sanctioned” by the CFPA,
Resolution Trust Corp. v. Walde, 18 F.3d 943, 947 (D.C. Cir.
1994), we will determine whether the Bureau complied with
the CFPA’s statutory requirements in the issuance of this CID,
Markwood, 48 F.3d at 976–77, 980; see also Powell, 379 U.S.
at 57–58. Although the CFPB may define the boundary of its
investigation “quite generally,” Invention Submission, 965
F.2d at 1090, it must comply with the terms of 12 U.S.C.
§ 5562(c)(2) before we can fully consider the Morton Salt
factors.
The CFPA mandates that “[e]ach [CID] shall state the
nature of the conduct constituting the alleged violation which
is under investigation and the provision of law applicable to
such violation.” 12 U.S.C. § 5562(c)(2); see also 12 C.F.R.
§ 1080.5. Section 5562(c)(2) ensures that the recipient of a
CID is provided with fair notice as to the nature of the Bureau’s
investigation. Because the validity of a CID is measured by the
purposes stated in the notification of purpose, see Church &
Dwight, 665 F.3d at 1315, the adequacy of the notification of
purpose is an important statutory requirement.
In this case, the CID’s Notification of Purpose states:
The purpose of this investigation is to determine
whether any entity or person has engaged or is
engaging in unlawful acts and practices in
connection with accrediting for-profit colleges,
in violations of sections 1031 and 1036 of the
Consumer Financial Protection Act of 2010, 12
U.S.C. §§ 5531, 5536, or any other Federal
consumer financial protection law. The purpose
of this investigation is also to determine
12
whether Bureau action to obtain legal or
equitable relief would be in the public interest.
In this proceeding, other than noting that an agency may define
the scope of its investigation in general terms, the Bureau
wholly fails to address the perfunctory nature of its Notification
of Purpose. As noted, the Bureau’s ability to define the
boundary of its investigation does not absolve it from
complying with the CFPA. We conclude that, as written, the
Notification of Purpose fails to state adequately the unlawful
conduct under investigation or the applicable law.
To begin with, the CID describes “the nature of the
conduct constituting the alleged violation which is under
investigation,” 12 U.S.C. § 5562(c)(2), as simply “unlawful
acts and practices in connection with accrediting for-profit
colleges.” Granted, a notification of purpose may use broad
terms to articulate an investigation’s purpose, see Texaco, 555
F.2d at 874 n.26, 877, but § 5562(c)(2) mandates that the
Bureau provide the recipient of the CID with sufficient notice
as to the nature of the conduct and the alleged violation under
investigation. Unlike the cases relied on by the Bureau, see,
e.g., Church & Dwight, 665 F.3d at 1314; Invention
Submission, 965 F.2d at 1087–88, the CID in this case does not
inform ACICS of the investigation’s purpose. The Notification
of Purpose defines the relevant conduct as “unlawful acts and
practices in connection with accrediting for-profit colleges.” It
never explains what the broad and non-specific term “unlawful
acts and practices” means in this investigation. Tellingly, in
attempting to explain the scope of its investigation, the Bureau
merely repeats the broad language used in the Notification of
Purpose. As we observed above, our review of the validity of
a CID is governed by the Morton Salt analysis. While that
review is narrow, it is not without content. As we noted in a
subpoena enforcement proceeding involving a different federal
13
agency, “broad language used to describe th[e] purpose makes
it impossible to apply the other prongs of the Morton Salt test.”
Sealed Case, 42 F.3d at 1418; cf. FTC v. Carter, 636 F.2d 781,
788 (D.C. Cir. 1980) (“The Commission . . . allowed our
examination of the relevance of their subpoena requests[] by
identifying the specific conduct under investigation . . . .”). We
cannot determine, for example, whether the information sought
in the CID is reasonably relevant to the CFPB’s investigation
without knowing what “unlawful acts and practices” are under
investigation. That is to say, where, as in this case, the
Notification of Purpose gives no description whatsoever of the
conduct the CFPB is interested in investigating, we need not
and probably cannot accurately determine whether the inquiry
is within the authority of the agency and whether the
information sought is reasonably relevant. In short, we reach
the same conclusion as the district court—albeit on narrower
grounds—that is, the CID does not comply with the
requirements of the statute.
The CFPB’s recognition that it lacks statutory authority
over the accreditation process of for-profit colleges further
illustrates the CID’s inadequacy. The CFPB’s ability to define
the scope of its investigation broadly “does not afford it
unfettered authority to cast about for potential wrongdoing
. . . .” Sealed Case, 42 F.3d at 1418; see also Church &
Dwight, 665 F.3d at 1316. The Bureau argues that it has an
interest in the “possible connection” and “intersection”
between the lending practices of ACICS-accredited institutions
and the accreditation process. Even if the CFPB is correct, that
interest does not appear on the face of the Notification of
Purpose. While the Bureau may be correct in noting that it need
not speculate as to “the precise character of [the] possible
violations” its investigation might uncover, see Texaco, 555
F.2d at 877, it is required by statute to adequately inform
ACICS of the link between the relevant conduct and the alleged
14
violation. As the district court correctly noted, the Notification
of Purpose “says nothing” about this potential link.1 See 183
F. Supp. 3d at 83.
The CID’s description of “the provision of law applicable
to such violation,” 12 U.S.C. § 5562(c)(2), is similarly
inadequate. The Notification of Purpose identifies 12 U.S.C.
§§ 5531 and 5536, as well as “any other Federal consumer
financial protection law,” as the applicable laws. Sections
5531 and 5536 set forth the CFPA’s general prohibition of
unfair, deceptive, or abusive acts and practices in connection
with transactions involving consumer financial products and
services. See id. §§ 5531(a), 5536(a)(1)(B). These provisions
“stand[] broadly alone” in the Bureau’s Notification of
Purpose, especially considering the Bureau’s failure to
adequately state “the specific conduct under investigation,” and
thus tell ACICS nothing about the statutory basis for the
Bureau’s investigation. See Carter, 636 F.2d at 788. The
CFPA provides detailed definitions of “Federal consumer
financial law,” 12 U.S.C. § 5481(12), (14), and “[c]onsumer
financial product or service,” id. § 5481(5), (15), yet the CID
contains no mention of these definitions or how they relate to
its investigation. The inclusion of the uninformative catch-all
phrase “any other Federal consumer financial protection law”
does nothing to cure the CID’s defects. Congress limited the
Bureau’s CID authority with § 5562(c)(2)’s notice
requirements, and framing the applicable law in such a broad
manner does not satisfy Congress’s clear directive. Indeed,
were we to hold that the unspecific language of this CID is
sufficient to comply with the statute, we would effectively
write out of the statute all of the notice requirements that
Congress put in.
1
We express no opinion as to whether a revised CID that complies with
§ 5562(c)(2) should be enforced. Cf. United States v. Aero Mayflower
Transit Co., 831 F.2d 1142, 1146 n.6 (D.C. Cir. 1987).
15
CONCLUSION
For the reasons stated, we conclude that the CID failed to
advise ACICS of “the nature of the conduct constituting the
alleged violation which is under investigation and the provision
of law applicable to such violation.” 12 U.S.C. § 5562(c)(2).
Accordingly, we affirm the district court’s denial of the
Bureau’s petition to enforce the CID.
So ordered.