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

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CONSUMER FINANCIAL )
PROTECTION BUREAU, )
)
Petiti0ner, )
)
v. ) Civil Case N0. 15-1838 (RJL)
)
ACCREDITING COUNCIL FOR )
INDEPENDENT COLLEGES AND )
SCHOOLS, ) F I |- E D
§ APR 2 1 2015
Respondent.
(§!erk, U.S. District & Bankruptc»;
W f§uurts for the District of Co|umh:'a
MEMOR NUM OPINION
Aprii§z , 2016 [Dkr. #1 ]
On October 29, 2()15, the Consumer Financial Protection Bureau ("CFPB" or
"petitioner") filed a petition in this Court, seeking an order requiring the Accrediting
Council for Independent Colleges and Schools ("ACICS" or "respondent") to comply
with a Civil Investigative Demand the CFPB issued to it on August 25, 2015. See Pet. to
Enforce Civil Investigative Demand 1 [Dkt. #l] ("Pet."). Because the CFPB did not have
authority to issue this Civil Investigative Demand, the petitioner’s request is DENIED
and this case is DISMISSED.
BACKGROUND
On August 25, 2015, the CFPB issued to ACICS, an accreditor of for-profit
col1eges, a Civil investigative Demand ("CID") with the stated purpose of "determin[ing]
whether any entity or person has engaged or is engaging in unlawful acts and practices in
connection with accrediting for-profit colleges." Decl. of Benjamin Konop Ex. A at 5‘
[Dkt. #l-3] ("CID"). The CID required ACICS to designate a company representative to
appear and give oral testimony regarding AClCS’s policies, procedures, and practices
relating to the accreditation of seven particular schools, and to respond to two
interrogatories: (l) to identify all post-secondary educational institutions that ACICS has
accredited since January 20l0 and (2) to identify all individuals affiliated with ACICS
who conducted any accreditation reviews since January l, 2010 specific to twenty-one
particular schools. See CID 6-7. According to the CFPB, this CID was issued following
a CFPB investigation of "for-profit colleges for deceptive practices tied to their private
student-lending activities." Mem. in Supp. of Petition to Enforce CID 5 [Dkt. #l-2]
("Pet’r’s Mem.").
Following receipt of the CID, AClCS’s counsel conferred with the CFPB several
times by telephone to discuss compliance. Pet’r’s Mem. 2. These discussions, however,
did not resolve disagreements between ACIClS and the CFPB concerning ACICS’s
obligations, and on Septe1nber l4, 2015, ACICS petitioned the CFPB to set aside or
modify the CID. Pet’r’s Mem. 2-3. The CFPB’s Director denied the petition on October
8, 2015 and ordered ACICS to meet and confer with CFPB counsel. Pet’r’s Mem. 3.
Thereafter, ACICS’S counsel continued to object to the CID, submitting to the CFPB a
motion to reconsider its refusal to modify the CID on October 23, 2015 and a letter
reiterating its arguments on October 26, 20l5. Pet’r’s Mem. 3. On October 27, 2015, the
' The Court refers to the page numbers assigned in the ECF caption for ease of reference,_
2
CFPB indicated that it would not consider AClCS’s motion for reconsideration because
its regulations did not permit such motions. Pet’r’s Mem. 3. Just two days later, the
CFPB filed the instant petition for enforcement. See Pet. To date ACICS has not
complied with the CID and opposes the CFPB’s petition on the ground that it "concerns
an investigation that is well outside the scope of the agency’s authority." ACICS Opp’n
to the CFPB’s Pet. to Enforce CID l [Dkt. #4] ("Resp’t’s Opp’n"). For the following
reasons, l agree.
LEGAL STANDARD
In determining whether to enforce a CID, a court must consider (l) whether the
agency has the authority to make the inquiry, (2) whether the information sought is
reasonably relevant, and (3) whether the demand is not too indefinite. See Um'ted States
v. Morton Salt C0., 338 U.S. 632, 652 (1950); FTC v. Texaco, Inc., 555 F.2d 862, 872
(D.C. Cir. 1977); CFTC v. Ekczsala, 62 F. Supp. 3d 88, 93 (D.D.C. 20l4). Ifthese three
requirements are met, a court should enforce the petition unless it is unduly burdensome.
See, e.g., Texaco, 555 F.2d at 882. Although a court’s role at this stage is "neither minor
nor ministerial" it is "a strictly limited one," designed to further the "important
governmental interest in the expeditious investigation of possible unlawful activity." Id.
at 871-72. In_short, the Court is not "to determine whether the [targeted entity’s]
activities [are] covered by the statute," but rather whether the information sought is
relevant to an investigation for "a lawfully authorized purpose." [a’. at 872 (discussing
Ena’z`cottJohnson v. Perkins, 317 U.S. 501 (1943))-. Moreover, agencies are generally
accorded broad deference both in their interpretation of the scope of their authority and
3
their estimation of the relevance of requested records. See FTC v. Ken Roberts Co., 276
F.3d 583, 586-87 (D.C. Cir. 2001) ("[W]e have held that enforcement of an agency’s
investigatory subpoena will be denied only when there is ‘a patent lack of jurisdiction’ in
an agency to regulate or to investigate."); Dir., Oy%ce of T hrzft Supervz`sz`on v. Vinson &
Elkz'ns, LLP, 124 F.3d 1304, 1307 (D.C. Cir. l997) ("We give the agency a wide berth as
to relevance because it need establish only that the information is relevant to its
investigation not to a hypothetical adjudication, and as we have explained, the boundary
of an investigation need only, indeed can only, be defined in general terms.").
Nevertheless, where it is clear that an agency either lacks the authority to investigate or is
seeking information irrelevant to a lawful investigatory purpose, a court must set such
inquiry aside. See Morton Salt, 338 U.S. at 652 ("[A] governmental investigation . . .
may be of such a sweeping nature and so unrelated to the matter properly under inquiry
as to exceed the investigatory power.").
ANALYSIS
ln the final analysis this case boils down to the answer to one question: Did the
CFPB have the statutory authority to issue the CID in question? Unfortunately for the_
CFPB, the answer is no. How so?
The CFPB was established on July 21, 2010 by Title X of the Dodd-Frank Wall
Street Reform and Consumer Protection Act, which tasked the CFPB with "regulat[ing]
the offering and provision of consumer financial products or services under the Federal
consumer financial laws." 12 U.S.C. § 549l(a). As such, the CFPB is authorized, inter
alz'a, to take action "to prevent a covered person or service provider from committing or
4
engaging in an unfair, deceptive, or abusive act or practice 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." Io’. § 553 l(a). To
facilitate this purpose, the CFPB may issue CIDs to "any person [believed to] be in
possession, custody, or control of any documentary material or tangible things, or may
have any information, relevant to a violation" of the federal consumer financial laws. lo'.
§ 5562(0)(1). These CIDs must "state the nature of the conduct constituting the alleged
violation which is under investigation and the provision of law applicable to such
violation." Io’. § 5562(€)(2).
Purportedly acting pursuant to this authority, the CFPB issued a CID to ACICS
which contained the following statement of purpose:
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 accreo’iting 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.
CID 5 (e1nphasis added). ACICS argues that this language demonstrates the CFPB is
attempting to conduct an investigation outside its statutory authority-that is, an
investigation into the accreditation process of for-profit schools. Resp’t’s Opp’n 8.2 As
2 ACICS also spends much of its opposition discussing why it is not subject to the Consumer Financial
Protection Act. Resp’t’s Opp’n 1 1-l5. Heeding our Circuit Court’s instructions, however, 1 must agree
with petitioner that this preliminary stage it is not the i%p§:_»_`z‘i`§)_`§-‘,iz*-.i`ate"i`£)i‘t`f'l-z,!§`?t§;*;adj_ii`§'iicate wh'£;_i:}}ie;_r ;'§_LClCS’s
activities are covered by any consumer financial law. Z_'¢i§‘si';aco,_"~§`-§`S P",Ed -at`f.-IY‘~E'.Z (cauti_i-is°h_-i`iig éourts
considering petitions to enforce administrate subpoenas that they are not consider the ultimate 'question of
5
previously discussed, the CFPB investigative authority is limited to inquiries to determine
whether there has been a violation of any consumer financial laws. See 12 U.S.C. §§
5561(1), (5). As respondent points out, and the CFPB does not deny, none of these laws
address, regulate, or even tangentially implicate the accrediting process of for-profit
colleges. Thus, at first blush, the CID’s statement of purpose appears to concern a
subject matter that is not within the statutory jurisdiction of the CFPB. See Ken Roberts,
276 F.3d at 586-87 (finding that a court asked to enforce a CID_must ensure that "the
subject matter of the investigation is within the statutory jurisdiction of the subpoena-
issuing agency" (internal quotation marks omitted)).
RealiZing the absence of a clear nexus between the consumer financial laws it is
tasked with enforcing and its purported investigation into accreditation of for-profit
schools, the CFPB argues that because it indisputably "has authority to investigate for-
profit schools in relation to their lending and financial-advisory services," it also has
authority to investigate whether any entity has engaged in any unlawful acts relating to
the accreditation of those schools. Pet’r’s Mem 4-5; Pet’r’s Reply l. Put simply, this
post-hoc justification is a bridge too far! As ACICS has repeatedly and accurately
explained, the accreditation process simply has no connection to a school’s private
student lending practices. Resp’t’s Opp’n l3. l\/loreover, ACICS is not involved in the
financial aid decisions of the schools it accredits, which means that it plays no part in
"wliefth.é-°:§-the ;[i"i*;~`T-_gi;‘;ted entity’s] activi_-`I‘§i:§‘:>$: [ziz‘v::,] :;‘-i?.n;»'@i"ed by the s‘£:€:,-i`£t`.;i`:ga'l"’ at this §il?f@i:ir§ii'inary I--E;z;;§=_sz_‘._='s:'
no f{i@_u_t;>i`tliat `:i`f" the CFPB pursues a c';§_zl'&i:;'s a;_;§*.~'L§inSH--EE;{QE_ICS in the €z_-I§__ui'=c_; these sig;=;~z_if,§;`$nt qiié)§§tii'ii»ns
will be at the center of the litigation.
deciding whether to make or fund a student loan. Id. at l4. The CFPB objects that it "is
not obligated to accept at face value ACICS’s generalized description of its interaction
with the schools it accredits, or what aspects of those schools’ activities it ‘touches,"’ but
rather it has the right to investigate and determine for itself whether these assertions are
true.3 Pet’r’s Reply 5-6. Please. Although it may be that the CFPB is entitled to learn
whether ACICS is connected in any way to potential violations of the consumer financial
laws by the schools it accredits, the statement of purpose and the CFPB’s actual requests
belie any notion that its inquiry is limited in this way. Indeed, the statement of purpose
says nothing about an investigation into the lending or financial-advisory practices of for-
profit schools. Moreover, the CFPB’s requests-for a list of all schools ACICS has
accredited since 2010, for a list of all individuals involved in the accreditation of twenty-
one enumerated schools, and for representatives to attest to the overall approach to
accrediting seven enumerated schools_clearly reveal its investigation targets the
accreditation process generally. This the CFPB was never empowered to do. See Morton
Salt, 338 U.S. at 652. And the fact that the CFPB is also investigating for-profit schools
3 Indeed, in its Notice of Supplemental Filing [Dkt. #12] ("Pet’r’s Suppl."), the CFPB argues that
AClCS’s AccreditationI'§f-z"it._i:;!_jia si§._;g§gest tlr°ii