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)

States Department of Education,1 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). 
2

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)). 
3

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 
4

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 . . .)
5

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.
6

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 
7

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.
8

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. 
9

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 
10

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. 
11

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.”
12

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 
13

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 
14

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 
15

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 injuryin-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 studentborrower 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). 
16

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 Departmentissued 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.”). 
17

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 selfinflicted 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 
18

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 
19

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 gasolineethanol 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.
20

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 
21

“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 
22

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 . . .)
23

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.
24

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 
25

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. 
26

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.