DocketNumber: Case No. 18-cv-05173-LB
Citation Numbers: 345 F. Supp. 3d 1127
Judges: Beeler, Introduction
Filed Date: 12/17/2018
Status: Precedential
Modified Date: 7/25/2022
Title IV of the Higher Education Act of 1965, as amended, authorizes the Secretary of Education and the Department of Education (collectively, the "Department") to provide grants and establish financial-assistance programs to help students pay for post-secondary education. Educational institutions must meet certain requirements to participate in these financial-assistance programs.
In December 2016, the Department promulgated regulations adding new requirements for institutions that offer distance-education or correspondence-course programs. Program Integrity and Improvement ,
The Disclosure Rule was set to go into effect on July 1, 2018. Following a change in presidential administrations, however, the Department issued a new rule in the summer of 2018 (the "Delay Rule"), delaying the effective date of the Disclosure Rule from July 1, 2018 to July 1, 2020 and raising the prospect that it would revise and reconsider the Disclosure Rule entirely. Program Integrity and Improvement ,
The National Education Association (the "NEA"), the California Teachers Association (the "CTA"), and Shane Heiman, Kwynn Uyehara, and Stephanie Portilla (the "Individual Plaintiffs") - NEA and CTA members who are enrolled or considering enrolling in online-education programs - filed this action against the Department. The plaintiffs allege that the Department failed to comply with certain statutory requirements in promulgating the Delay Rule and that the Delay Rule thus is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" in violation of the Administrative Procedure Act (the "APA").
The Department moves to dismiss the plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(1) on the ground that the plaintiffs do not have Article III standing. The Department argues that the plaintiffs (1) have not suffered an injury in fact (2) that is fairly traceable to the Department (3) that is redressable. The Department argues that the loss of the Disclosures does not constitute an injury in fact caused by the Department. The Department also argues that any purported harm to the plaintiffs is speculative and conjectural. The plaintiffs respond that they are being deprived of information that they would have received in the Disclosures and that they would use that information to make decisions about whether to continue to spend their time and money in continuing in their online-education programs. The plaintiffs argue that the loss of this information is an injury in fact and *1132that this injury is fairly traceable to the Department's actions in issuing the Delay Rule.
The court denies the Department's motion to dismiss. The plaintiffs have pleaded standing.
STATEMENT
1. The Higher Education Act's "State Authorization" Requirement
Congress enacted the Higher Education Act (the "HEA") "[t]o strengthen the educational resources of our colleges and universities and to provide financial assistance for students in postsecondary and higher education." Higher Education Act of 1965, Pub. L. No. 89-329,
The HEA imposes certain requirements on educational institutions to be eligible for students to pay for their programs with Title IV grants and loans.
The HEA does not further define what it means for an educational institution to be "legally authorized within such State."
2. The 2016 Disclosure Rule
During the last presidential administration, concerns were raised regarding fraud and noncompliance among online and distance-education programs. As the Department reported, "[t]he Office of the Inspector General (OIG), the Government Accountability Office (GAO), and others have voiced concerns over fraudulent practices, issues of noncompliance with requirements of the title IV programs, and other challenges within the distance education environment."
The Department observed that Title IV's state-authorization requirement envisions that "States, accrediting agencies, and the Department act jointly as gatekeepers for the Federal student aid programs[.]"
To address these issues, the Department engaged in a multi-year rulemaking process that cumulated in its promulgating new regulations in December 2016.
Specifically, the Disclosure Rule imposed the following requirements:
(a) General. In addition to the other institutional disclosure requirements established in this and other subparts, an institution described under 34 CFR 600.9(a)(1) or (b) that offers an educational program that is provided, or can be completed solely through distance education or correspondence courses, excluding internships and practicums, must provide the information described in paragraphs (b) and (c) of this section to enrolled and prospective students in that program.
(b) Public disclosures. An institution described under 34 CFR 600.9(a)(1) that offers an educational program that is provided, or can be completed solely through distance education or correspondence courses, excluding internships and practicums, must make available the following information to enrolled and prospective students of such program, the form and content of which the Secretary may determine:
(1)(i) Whether the institution is authorized by each State in which enrolled students reside to provide the program;
...
(2)(i) If the institution is required to provide a disclosure under paragraph (b)(1)(i) of this section, a description of the process for submitting complaints, including contact information for the receipt of consumer complaints at the appropriate State authorities in the State in which the institution's main campus is located, as required under § 668.43(b);
...
*1134(3) A description of the process for submitting consumer complaints in each State in which the program's enrolled students reside, including contact information for receipt of consumer complaints at the appropriate State authorities;
(4) Any adverse actions a State entity has initiated, and the years in which such actions were initiated, related to postsecondary education programs offered solely through distance education or correspondence courses at the institution for the five calendar years prior to the year in which the disclosure is made;
(5) Any adverse actions an accrediting agency has initiated, and the years in which such actions were initiated, related to postsecondary education programs offered solely through distance education or correspondence courses at the institution for the five calendar years prior to the year in which the disclosure is made;
(6) Refund policies with which the institution is required to comply by any State in which enrolled students reside for the return of unearned tuition and fees; and
(7)(i) The applicable educational prerequisites for professional licensure or certification for the occupation for which the program prepares students to enter in -
(A) Each State in which the program's enrolled students reside; and
(B) Any other State for which the institution has made a determination regarding such prerequisites;
(ii) If the institution makes a determination with respect to certification or licensure prerequisites in a State, whether the program does or does not satisfy the applicable educational prerequisites for professional licensure or certification in that State; and
(iii) For any State as to which the institution has not made a determination with respect to the licensure or certification prerequisites, a statement to that effect.
(c) Individualized disclosures. (1) An institution described under 34 CFR 600.9(a)(1) or (b) that offers an educational program that is provided, or can be completed solely through distance education or correspondence courses, excluding internships or practicums, must disclose directly and individually -
(i) Prior to each prospective student's enrollment, any determination by the institution that the program does not meet licensure or certification prerequisites in the State of the student's residence; and
(ii) To each enrolled and prospective student -
(A) Any adverse action initiated by a State or an accrediting agency related to postsecondary education programs offered by the institution solely through distance education or correspondence study within 30 days of the institution's becoming aware of such action; or
(B) Any determination by the institution that the program ceases to meet licensure or certification prerequisites of a State within 14 calendar days of that determination.
The Department explained its reasons for new disclosure requirements:
We believe ... that students would benefit from increased transparency about distance education programs. The disclosures of adverse actions against the programs, refund policies, consequences of moving to a State in which the program does not meet requirements, and the prerequisites for licensure and whether the program meets those prerequisites *1135in States for which the institution has made those determinations will provide valuable information that can help students make more informed decisions about which institution to attend.
Increased access to information could help students identify programs that offer credentials that potential employers recognize and value. Additionally, institutions have to provide an individualized disclosure to enrolled and prospective students of adverse actions against the institution and when programs offered solely through distance education or correspondence courses do not meet licensure or certification prerequisites in the student's State of residence. The disclosure regarding adverse actions will ensure that students have information about potential wrongdoing by institutions. Similarly, disclosures regarding whether a program meets applicable licensure or certification requirements will provide students with valuable information about whether attending the program will allow them to pursue the chosen career upon program completion, helping students make a better choice of program before they incur significant loan debt or use up their Pell Grant and subsidized loan eligibility.
The Disclosure Rule was set to go into effect on July 1, 2018.
3. The 2018 Delay Rule
In the summer 2018, the Department issued the Delay Rule to delay the effective date of certain portions of the 2016 regulations, including the Disclosure Rule, from July 1, 2018, to July 1, 2020.
The Department explained that the Delay Rule was prompted by two letters the Department received from organizations that represent regulated educational institutions.
The Department acknowledged that delaying the effective date of the 2016 regulations and the Disclosure Rule might negatively impact students:
Comment: Commenters stated that delaying the effective date of the 2016 final regulations would negatively impact students because the consumer protections *1136and disclosures that would have been available to students under the 2016 final regulations will not be available to students. A few commenters expressed concern that students' ability to file complaints against institutions would be impeded by delaying the effective date of the provisions in the 2016 final regulations related to the State complaint process.
Discussion: While we do not have specific data with regard to how many schools and States have come into compliance with the 2016 final regulations, based on the information we do have, we expect that many students will still receive disclosures regarding distance education programs during the period of the delay due to steps institutions have already taken....
[W]e acknowledged in the [notice of proposed rulemaking] that, as a result of the proposed delay, it is possible that students might not receive disclosures of adverse actions taken against a particular institution or program. Students also may not receive other information about an institution, such as information about refund policies or whether a program meets certain State licensure requirements. This information could help students identify programs that offer credentials that potential employers recognize and value; delaying the requirement to provide these disclosures may require students that desire this information to obtain it from another source or may lead students to choose sub-optimal programs for their preferred courses of study. We note, however, that the Department has never required ground-based campuses to provide this information to students, including campuses that enroll large numbers of students from other States. Thus, for students who attend on-ground campuses, the program they completed may meet licensure requirements in the State in which the campus is located but not licensure requirements in other States.
....
We recognize that the burden of the delay does fall on students and believe that the description of the effects of the delay reflects this. However, as noted in the Analysis of Comments section in this preamble, many students will still receive sufficient disclosures regarding distance education programs during the period of the delay due to steps institutions have already taken to comply with the 2016 final regulations.... The Department maintains its position that, in allowing reconsideration of the 2016 final regulations to provide institutions greater clarity on key issues, the benefits of the delay of the selected provisions are greater than the potential costs to students of the delayed disclosures and complaint processes that could already be accessible from other sources.
4. The Plaintiffs
The National Education Association is the largest professional-employee organization in the country and is committed to advancing the cause of public education.
The NEA and the CTA bring this action on behalf of their members.
Individual plaintiffs Shane Heiman, Kwynn Uyehara, and Stephanie Portilla are NEA members, and Ms. Uyehara and Ms. Portilla are CTA members.
STANDARD OF REVIEW
A complaint must contain a short and plain statement of the ground for the *1138court's jurisdiction. Fed. R. Civ. P. 8(a)(1). The plaintiff has the burden of establishing jurisdiction. Kokkonen v. Guardian Life Ins. Co. of Am. ,
The Department moves to dismiss the plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. A defendant's Rule 12(b)(1) jurisdictional attack can be either facial or factual. White v. Lee ,
The Department argues that the plaintiffs lack standing. Standing pertains to the court's subject-matter jurisdiction and thus is properly raised in a Rule 12(b)(1) motion to dismiss. Chandler v. State Farm Mut. Auto. Ins. Co. ,
" 'As a general rule, in an injunctive case [a] court need not address standing of each plaintiff if it concludes that one plaintiff has standing.' " Atay v. County of Maui ,
ANALYSIS
The Department argues that the court need not reach the merits of the plaintiffs' APA challenge because the plaintiffs lack standing to assert it. The Department argues that the plaintiffs have not satisfied the elements of Article III standing: (1) an injury in fact (2) fairly traceable to the Department (3) that is redressable. The court disagrees. As discussed below, the plaintiffs have satisfied all three elements of Article III standing. The plaintiffs have also satisfied the separate "zone of interests" test, formerly referred to at times as "prudential standing."
1. Zone of Interests
While the parties do not expressly raise the zone-of-interests test, the court addresses *1139it briefly here, to assess whether the case is justiciable and to avoid confusion between the application of this test and the application of the separate test for Article III standing. Cf. Federal Election Commission v. Akins ,
"The 'zone-of-interests' test ... is a judge-made 'prudential standing requirement,' independent of the three immutable constitutional standing requirements of Article III." Bonnichsen v. United States ,
"The Supreme Court has emphasized that the zone of interests test, under the APA's 'generous review provisions,' 'is not meant to be especially demanding; in particular, there need be no indication of congressional purpose to benefit the would-be plaintiff.' "
Unlike the constitutional requirements of Article III standing, "Congress can modify or abrogate the zone of interests test" and allow any person to file a claim under a federal statute, subject to the limits of Article III standing. Bonnichsen ,
One of the central purposes of the Higher Education Act was "to provide financial assistance for students in postsecondary and higher education." Pub. L. No. 89-329, 79 Stat. at 1219; accord
2. Article III standing
"The 'irreducible constitutional minimum' of standing consists of three elements." Spokeo, Inc. v. Robins , --- U.S. ----,
2.1 Injury in Fact
"To establish injury in fact, a plaintiff must show that he or she suffered 'an invasion of a legally protected interest' that is 'concrete and particularized' and 'actual or imminent, not conjectural or hypothetical.' " Spokeo ,
2.1.1 Informational injury
The plaintiffs here have pleaded a concrete and particularized injury in fact: the loss of the Disclosures they had a right to receive under the Disclosure Rule. The Disclosures the plaintiffs would have received would have included information about whether their schools were ever subject to an adverse action by a state or accrediting agency and whether their educational programs meet state licensing and certification requirements. The plaintiffs plead that if they received those Disclosures, they would carefully review them and be better able to determine if the educational programs they are enrolled in or applying to are suitable versus "suboptimal" and make more informed decisions about whether or not to continue with their programs and applications. The Delay Rule prevented the Disclosure Rule, and the requirement that educational institutions provide the plaintiffs with these Disclosures, from going into effect. The loss of these Disclosures and information thus inflicts an injury in fact on the plaintiffs.
"The notion of an informational injury serving as an injury-in-fact sufficient for standing can be traced to Federal Election Commission v. Akins ,
The "injury in fact" that respondents have suffered consists of their inability to obtain information - lists of AIPAC donors (who are, according to AIPAC, its members), and campaign-related contributions and expenditures - that, on respondents' view of the law, the statute requires that AIPAC make public. There is no reason to doubt their claim that the information would help them (and others to whom they would communicate it) to evaluate candidates for public office, especially candidates who received assistance from AIPAC, and to evaluate the role that AIPAC's financial assistance might play in a specific election. Respondents' injury consequently seems concrete and particular. Indeed, this Court has previously held that a plaintiff suffers an "injury in fact" when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.
The Supreme Court did not require that the voters in Akins show that they would necessarily make a bad decision due to the deprivation of information, or that they would suffer some other concrete or particularized harm as a consequence of making an uninformed decision. Instead, the Court held that the loss of the information to make a more informed decision itself constituted a concrete and particular injury in fact. Akins ,
2.1.2 The Department's arguments
The Department raises three arguments as to why the loss of the Disclosures that students would have received under the Disclosure Rule is not an injury in fact and cannot provide a basis for standing:
1. unlike a statute, a mere regulation like the Disclosure Rule cannot establish a right to information whose loss can provide a basis for standing,24
2. the Disclosure Rule never went into effect and thus never established a right to information, and thus there is no loss of information that provides a basis for standing,25 and *11423. the plaintiffs' injuries are speculative, conjectural, or "self-inflicted."26
None of these arguments is persuasive.
2.1.2.1 Whether a regulatory right to information can give rise to standing
The D.C. Circuit has recognized that the deprivation of information to which plaintiffs have a regulatory right (as opposed to a statutory right) can constitute an injury in fact for the purposes of standing.
This issue arose in Action Alliance of Senior Citizens v. Heckler ,
HHS issued government-wide regulations that (1) required programs that receive federal financial assistance to provide HHS with a self-evaluation listing all age distinctions they used and the justification for each and (2) directed agencies to require the recipient programs to provide the agencies with information about their compliance.
Four senior-citizen-welfare organizations sued to challenge the HHS-specific regulations.
Writing for the D.C. Circuit, then-Judge Ruth Bader Ginsburg rejected HHS's lack-of-standing arguments:
The government-wide regulations HHS published afford interested individuals and organizations a generous flow of information regarding services available to the elderly. [The plaintiffs] assert[ ] that two of the challenged dispositions in the HHS-specific regulations - the elimination of the self-evaluation requirement and the reduction of compliance reports - significantly restrict that flow. The information secured by the general regulations, but cut short by the HHS-specific regulations, would enhance the capacity of [the plaintiffs] to refer members to appropriate services and to counsel members when unlawful age discrimination may have figured in a benefit denial.... As in the case of other *1143organizations whose standing this court has upheld, [the plaintiffs] thus ha[ve] adequately alleged a direct, adverse impact on [their] activities by reason of the agency decisions reflected in the HHS-specific regulations. See, e.g. , Scientists' Institute for Public Information, Inc. v. AEC ,481 F.2d 1079 , 1087 n.29 (D.C. Cir. 1973) (holding that plaintiff organization had standing to challenge AEC decision not to issue an environmental impact statement because the agency action limited the plaintiff's ability to carry out one of its major activities: informing the public).
Id. at 937.
Notably, there was no requirement in the underlying Act for recipient programs to provide self-evaluations or compliance information. See Age Discrimination Act of 1975, Pub. L. No. 94-135, tit. III,
The D.C. Circuit reaffirmed Action Alliance in PETA v. U.S. Department of Agriculture ,
The USDA interpreted the AWA's definition of "animal" to exclude birds until 2002, when Congress amended the definition to explicitly exclude "birds ... bred for use in research."
The USDA had a practice of inspecting complaints of mammalian mistreatment and making its inspection reports publicly available in an online database.
*1144The D.C. Circuit rejected the USDA's lack-of-standing arguments. It reaffirmed its holding in Action Alliance that when "government-wide regulations ... afforded interested individuals and organizations a generous flow of information" but "specific regulations significantly restricted that flow," plaintiffs that relied on that information to conduct their routine activities might be able to plead an injury and Article III standing.
There was no requirement in the underlying Act that required the USDA to provide bird-abuse inspection reports in an online database. The D.C. Circuit nonetheless held that the USDA's practice of making available inspection reports about animal-abuse allegations, and PETA's interest in those reports in connection with bird-abuse allegations, could provide a basis for standing.
Citing the D.C. Circuit, the Seventh Circuit has suggested, albeit in dicta, that regulations and agency policies, in addition to statutes, may give rise to a right to information that can form the basis for an injury in fact and Article III standing. "It need not be fatal to the plaintiffs' claim ... that an explicit right to information is not within the [statutory] text or history. Although an act of Congress would seem to be necessary to establish a right to information sufficient to confer informational standing, we have noted authority in other courts indicating that regulations or agency policies may be sufficient to create a right to information." Bensman v. U.S. Forest Serv. ,
The Department cites no cases that hold that a right to information secured by regulation, as opposed to statute, cannot provide a basis for an injury in fact or standing. The Department intimates that the Ninth Circuit held in Wilderness Society ,
The Department also cites Friends of Animals v. Jewell ,
The language the Department quotes from Friends of Animals I was in turn quoted from the D.C. Circuit's opinion in Animal Legal Defense Fund, Inc. v. Espy ,
The plaintiffs in Animal Legal were animal-welfare advocates that wanted the USDA to expand animal-welfare rules under the Animal Welfare Act. Id. at 498. The D.C. Circuit held that their generalized interest in promoting animal welfare was not within the "zone of interests" protected by the AWA. Id. at 503-04 ("It is simply not enough that the organizations exist to promote interests congruent with the humanitarian purposes of the statute, broadly conceived.... The organizations have not asserted any claim within the zone of interests protected by the Act, and their suit may not be heard."). "[O]nly in very special statutory contexts," where "Congress, ... by specific enactments, override[s] the zone of interest test and related prudential standing purposes," can a plaintiff bring an APA challenge with claims that do not fall within the zone of interests protected by the underlying statute. Id. at 502 (citing Havens Realty Corp. v. Coleman ,
*1146This "very special statutory contexts" requirement is not necessary where a plaintiff's claim falls within the zone of interests protected by the underlying statute. The Animal Legal plaintiffs' interest in promoting animal welfare as a general matter - an interest that did not directly affect the Animal League plaintiffs any more than any other member of the public writ large - did not fall within the zone of interests protected by the AWA. As a result, the plaintiffs needed "very special statutory contexts" to be able to bring a claim from outside the zone of interests. The D.C. Circuit contrasted this to the senior-citizen-welfare organizations in Action Alliance , who sought information about compliance with the Age Discrimination Act "to advise their members of the members' own rights under the statute, rather than simply to educate all those who desire to promote the statute's substantive purposes." Animal League ,
The court finds the D.C. Circuit's reasoning in Action Alliance persuasive and adopts it here. The plaintiffs here, like the plaintiffs there, are within the zone of interests of their underlying statute. The Disclosure Rule here, like the government-wide regulations there, "afford[ed] individuals and organizations a generous flow of information." Cf. Action All. ,
2.1.2.2 Whether a regulation that has not yet gone into effect can establish a right to information that can give rise to standing
The Department next argues that the Disclosure Rule never went into effect, so the plaintiffs never had an effective right to any Disclosures. According to the Department, the loss of information - when there never was a right to that information - inflicts no injury and thus does not provide a basis for standing.
This argument fails. Courts recognize that where a regulation has not gone into effect but would, when effective, provide plaintiffs with concrete benefits, a delay of that regulation and the commensurate delay or deprivation of those benefits can constitute an injury in fact and provide a basis for standing. Bauer v. DeVos ,
2.1.2.3 Whether the plaintiffs' injuries are speculative, conjectural, or "self-inflicted"
The Department advances a number of arguments about why the plaintiffs' injuries are too speculative, conjectural, or "self-inflicted" to constitute injury in fact for purposes of Article III standing. None prevails.
2.1.2.3.1 The plaintiffs' plans to enroll in educational programs
The Department first argues that the NEA and CTA do not have standing because "Plaintiffs allege that 'NEA and CTA members are injured by the Delay Rule because they are actively considering whether to enroll in or continue enrollment in certain programs of higher education that would be required, under the [Disclosure] Rule, to make certain disclosures.' But such 'some day' intentions - without any description of concrete plans, or indeed even any specification of when the some day will be - do not support a finding of the 'actual or imminent' injury that courts require."
The three Individual Plaintiffs in this action have concrete plans. Mr. Heiman and Ms. Portilla are currently enrolled in online courses, and Ms. Uyehara plans to apply by December 2018. The Individual Plaintiffs allege that they would review the Disclosures they would have received in deciding whether to apply or continue in their courses. Their plans are sufficiently concrete to provide a basis for standing.
The Department cites Townley v. Miller ,
2.1.2.3.2 The impact of Disclosures on the plaintiffs' decisions
The Department next argues that the plaintiffs' injuries are speculative because it is speculative whether the Disclosures would affect their enrollment decisions or help them identify more optimal or less optimal educational programs. The Department argues that the plaintiffs merely allege that if they received Disclosures, they "would carefully review such disclosures and, depending on the information provided , the disclosures could affect [their] decisions," including whether to enroll or continue in educational programs, whether to stop attending the programs, or whether to transfer to different schools.
How the Disclosures would affect the plaintiffs' decisions about whether to enroll or continue in their educational programs depends on what the Disclosures say. Disclosures that say, for example, that the plaintiffs' educational programs meet all state licensing and certification requirements, or that their schools have never been subject to adverse action by a state or accrediting agency, would engender a different reaction from Disclosures that the programs do not meet state requirements and that their schools are under investigation by a dozen state attorneys general for fraud. The plaintiffs' inability to say at this juncture what the Disclosures would say, and thus to say how they would react, does not render their injury hypothetical or speculative. Their loss of the Disclosures and the opportunity to use them to make a more informed decision is itself a concrete injury. Cf. Akins ,
2.1.2.3.3 The availability of information from other sources
Finally, the Department argues that "[e]qually speculative are Plaintiffs' allegations that they will not receive the subject disclosures. They fail to allege, for example, that such information is not publicly available (e.g., on an institution's website) or that they have attempted to obtain such information by contacting the institution directly but have been rebuffed.... [T]he Court should reject Plaintiffs' theory of standing because, to the extent Plaintiffs have suffered any harm, it is self-inflicted. Plaintiffs themselves acknowledge that they may be able to obtain the requested information even absent the 2016 Rule. Yet they apparently have undertaken no effort whatsoever to determine whether such information is in fact available elsewhere.... Accordingly, insofar as Plaintiffs have been unwilling to even attempt to obtain the purportedly sought-after information, *1150they have failed to demonstrate an Article III injury."
The Department's argument that the plaintiffs have not suffered an injury relies on the conceit that there is no difference between providing students individualized Disclosures (as educational institutions were required to do under the Disclosure Rule) and telling students to fend for themselves and scour the public record looking for equivalent information (where it might or might not be available). The court is not persuaded. When it issued the Disclosure Rule, the Department estimated that it would take an educational institution an average of 100 hours per program to research and disclose the job licensing and certification requirements called for by the Disclosure Rule, plus 15 hours to research and disclose the other required information (adverse actions by state or accrediting agencies, refund policies, etc.) - time the Department valued at $3,655.00 for the program-specific disclosures and $548.25 for the other disclosures.
*1151* * *
The court holds that the plaintiffs have pleaded a concrete injury in fact and have satisfied the first element of standing.
2.2 Causation
The plaintiffs have pleaded that their injury is fairly traceable to the Department's actions and thus have pleaded causation for the purposes of Article III standing. Under the Disclosure Rule, educational institutions that offered distance-education or correspondence-course programs were required to provide Disclosures to students and the public. Because the Department issued the Delay Rule, the Disclosure Rule and these requirements never went into effect. The loss of these mandatory Disclosures is directly traceable to the Department's conduct in issuing the Delay Rule.
The Department argues that educational institutions might disclose some information voluntarily or some of the information that would be subject to disclosure under the Disclosure Rule might be publicly available even without the Disclosure Rule. Assuming this were true, this does not mean that the Department has not caused injury by relieving those educational institutions of their mandatory obligations to make Disclosures. Cf. Akins ,
The court holds that the plaintiffs have pleaded that their injury is fairly traceable to the Department's actions and have satisfied the second element of standing.
2.3 Redressability
If the plaintiffs prevail, the court can set aside the Delay Rule. Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec. ,
The Department's reliance on Levine v. Vilsack ,
The court holds that the plaintiffs have pleaded that their injury is redressable and have satisfied the third element of standing.
*1152CONCLUSION
The plaintiffs have pleaded standing to pursue this case. The court denies the Department's motion to dismiss.
IT IS SO ORDERED.
Compl. - ECF No. 1 at 10 (¶ 33) (citing
Compl. - ECF No. 1 at 13 (¶ 43) (citing
Compl. - ECF No. 1 at 4 (¶ 14).
The Department characterizes its motion as a factual attack, Defs. Mot. to Dismiss - ECF No. 23 at 19, but it does not argue that any of the allegations in the plaintiffs' complaint are untrue. It appears that the Department characterizes its attack as a factual attack in order to ask the court to take notice of certain matters of public record.
The "zone of interests" test was, until recently, also referred to as "prudential standing." Havasupai Tribe v. Provencio ,
Compl. - ECF No. 1 at 2 (¶ 2).
The Department agrees that "courts have recognized an Article III injury where a plaintiff has been deprived of information to which they have a statutory right." Defs. Mot. to Dismiss - ECF No. 23 at 15-16 (citing Wilderness Soc'y ,
Defs. Mot. to Dismiss - ECF No. 23 at 15-16; Defs. Mot. to Dismiss Reply - ECF No. 28 at 6-8.
Defs. Mot. to Dismiss - ECF No. 23 at 16; Defs. Mot. to Dismiss Reply - ECF No. 28 at 8.
Defs. Mot. to Dismiss - ECF No. 23 at 16-19; Defs. Mot. to Dismiss Reply - ECF No. 28 at 10-12.
Judge Millett filed a dubitante opinion taking issue with the majority's holding that PETA had standing because not only was there no statutory right to the reports PETA sought, there was no regulatory right either. PETA ,
The Department argues that "[t]his murmuring in other Circuits" about regulatory informational rights "is simply insufficient to overcome the Ninth Circuit's unequivocal statement that 'courts have recognized an Article III injury where a plaintiff has been deprived of information to which it has a statutory right.' " Defs. Mot. to Dismiss Reply - ECF No. 28 at 8 (emphasis added by the Department) (purportedly quoting Wilderness Soc'y ,
Defs. Mot. to Dismiss - ECF No. 23 at 16.
The Friends of Animals decision did not turn on either the question of statutory rights to information versus regulatory rights or the zone-of-interests test, but instead on the fact that the plaintiff did not have a right to the information at issue at all. Friends of Animals II ,
This is the language the Department quotes in its filings. Defs. Mot. to Dismiss Reply - ECF No. 28 at 7.
Defs. Mot. to Dismiss - ECF No. 23 at 16 (citing no cases on this issue); Defs. Mot. to Dismiss Reply - ECF No. 28 at 8 (same).
Defs. Mot. to Dismiss - ECF No. 23 at 16 (some internal quotation marks and internal brackets omitted) (quoting Lujan ,
Only one plaintiff needs to have standing for this case to proceed. Atay ,
The Ninth Circuit ultimately held that those plaintiffs lacked standing because they failed to establish the third element of standing, redressability. Townley ,
Defs. Mot. to Dismiss - ECF No. 23 at 18 (emphasis added by the Department) (quoting Compl. - ECF No. 1 at 6-8 (¶¶ 20-22) ).
The Department's reliance on New York Regional Interconnect, Inc. v. Federal Energy Regulatory Commission ,
The Department's other cases are similarly inapposite. Association of American Physicians and Surgeons, Inc. v. Brown , No. 2:16-cv-02441-MCE-EFB,
Defs. Mot. to Dismiss - ECF No. 23 at 17, 18-19 (citations omitted).
It would likely take students more time and effort to research information than the educational institutions, as the institutions would have access to information that the students lack. For example, an educational institution would have direct knowledge if a state or accrediting agency took adverse action against it, whereas students would not have the same direct knowledge.
The Department's claim that the plaintiffs' injuries are "self-inflicted" is unsupported. The "self-inflicted injury" doctrine provides that plaintiffs "cannot manufacture standing merely by inflicting harm on themselves based on their fear of hypothetical future harm that is not certainly impending." Clapper v. Amnesty Int'l USA ,