UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) MARK PASSUT , et al. , ) ) Plaintiffs, ) )
v. ) ) M IGUEL CARDONA , in his official )
c apacity as the Sec retary of th e United ) Civil Action No. 19

- 1606 (RBW) States Department of Education, 1 et al. , ) ) Defendants. )

_____________________________ _

_

_

____)

M EMORANDUM OPINION
Mark Passut and M ark Kaiser, the n amed plaintiffs in this case, bring thi s putative c las s
acti o n 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 “Secretar y”),
seekin g decl aratory and inj unctive relief under the A dmi nistrative Pro ce dure Act (“APA”),
5 U.S.C. § § 701

– 706

. See A mended Compl aint f or Declaratory and Injunctive Relief (“Am

. C ompl.”) ¶¶ 1

– 4 , ECF No. 14

. The plaintiffs challeng e an April 3, 2018 order b y the Secretary
that r endered null and void a December 12, 2016 decis ion ( the “December 2016 decision”)
revok ing the reco gnitio n of the Ac crediting Council for Independ ent Colleges and Sc hools ( the

“ Accrediting Council ” or “ AC ICS ” ) as an accrediting agency for postsecondary education institutions, including the plaintiffs’ former school, the defunct Virginia College. See i d. 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 Mi guel Cardona is the c urrent Secretary of the United States Department of Education , and he is therefore substitute d for Bet sy DeVos as the proper pa rty defendant purs uant to Fede ral Rule of Civil Procedure 25(d).2 Mot .” or the “ plaintiffs ’ motion for class certif ication ” ) , ECF No. 2

. Upon c areful consideration of the parties’ submission s, 2 the Court concl udes for the following reasons that it must grant in part and deny as moot in part the defendants’ moti on to dismiss and deny as moot the plaintiffs’
motion for class certificati on
. 3

I. BACKGROUND
Th e Court previously described the relevant st atutory and regu latory framework and factual background of much of this case in detail, see Accrediting Council for Indep. Coll s. &
Schs. v. D eVos , 30 3 F. Supp. 3d 77, 86

– 93 (D.D.C. 2018) (Walton, J.) , an d th erefore will not
reiterat e that information in full again here . T he Co urt , however, provi des the following procedural posture, which is pertinent to its resolution of the pending motions in this case

. A. Accredi ting Council for Independent Coll eges & Schools v. DeVo s On December 15, 2 016, the Accredi ting Council initiated a n a ction against th e Dep a rtment pursuant to the APA, challenging the decision of the Secretary to deny t he Accrediting C ouncil ’ s petition for continued recognition ( the “ Accrediting Council ’ s January
2016 Petition ” ) and revoke the Accrediting Council ’ s rec ogn ition as an “acc rediti ng agency” for
certain institutions of higher education

. See id. at 85. Alth ough this Court r ejected the
Accrediti ng Co u ncil’s argument that the Secretary violated the APA by failing to discuss all of
the criteria to which the Ac credi ting Cou nci l had been found noncompliant, see id. at 122, the

2 In addit ion to the filings alread y ident if ied, the Cou r t considered the following submission s in rendering its deci sion: (1) the Memor andu m of Points and Aut horiti es in Supp or t of Defendan t s’ Motion t o Dism iss (“De fs.’ Mem.”) , ECF No. 1 6 ; (2) the Plaintiffs’ O pposition t o Def endants’ Motion to D ismis s (“Pls.’ Opp’n”) , ECF No. 18 ; (3 ) the Defendants’ Reply Mem o r [] an [ d ] um in S upport of their Motion to Dismiss (“ Defs. ’ Re ply ”) , ECF No . 20 ; and ( 4) t he Plaintiff s’ [Pro po sed] Surreply in Oppo siti o n to Defendan ts’ M otion to Dismis s (“Pls.’ Su rr eply”) , ECF No. 23

.

3 B ecause the Court concludes fo r the reas ons describ ed below that it lacks juri sdiction to resolve the p laint i ffs ’ pendin g motion for class certificatio n, t he Court also concludes th at i t must dis m i ss as m oot the pla intiff s ’ motion for class cert ifi cation. See Heard v. U.S. Soc

. Sec . Admin. , 1 70 F. Su pp. 3d 124, 135 (D.D.C. 2016) (Walton, J. ) (denying a motio n for c lass certification as moot in light of the Court ’ s grantin g of the def endants ’ moti o n to d is miss pur suant t o Rule 12(b)(1)).3 Court n evertheless conc luded that the Secretary had v iolated the APA by “f ailing to consider [certain informati on provided by the Accrediting Council in support of its petition for continued

re cogni tion ( the “ Accrediting Council ’ s Part II response ” ) ] ,” id. at 122

– 23. Accordingly, “[b]eca use the [Act] requi r es the Secretary to c onsider an appl ication de novo ,” id. at 122; se e
20 U.S.C. § 10 99b(n)(1) (“The Secretary shall conduct a n indep e ndent evaluation of the
information provided by [ the accrediting agency ] .

. . .”), the Court “[found ] it appropriate to

re mand the ca se to the Secretary for proceedings c onsistent with [its] opinion [, ] ” Accr editing
Council , 303 F. Supp. 3d at 122. Th e C o urt noted that i t w as “unable to co nclude that no part of the 36,000

- pa ge [ Part II response ] submi ssions [ not considered b y the S e cretary] woul d have affected the Secretary’s dete rmination that the Accrediting Counci l could not come int o compliance wit hin twelve months[,] ” a nd that the “ sub m i ssion contained relevant information
that was ind isputably re levant to assessing thos e violations.” Id. a t 107. Therefore, the Court

“ remand [ed the] case to the Secretary for consideration of this evidence. ” Id. at 123.
B. The Secret ar y ’ s April 2018 Or der On April 3, 2018, the Secretary issued an order sett ing for th the Department ’s proc edures
on remand from this Court ( “the Secretary ’s April 20 18 Order ”). See Order at 1

– 2 , Accrediting
Council for Ind

. Coll s. & Schs. , U.S. Dep ’t of Educ., No. 16

- 44

- O , at 2 ( Apr

. 3 , 20 18 ) , https://www2.e d.gov/documents/press

- releas es/acics

- docketno

- 16

- 44

- 0.pd f

. The Se cretary
stated that “[a]s a result of [ ] [ this C]ourt ’s remand, there is no fin al decision on the recognition petition that [the Ac crediting Council had] submit ted to the D e partment[.] ” Id

. at 1. Therefore,
the Secr eta ry concluded that “[t he Accredi ting Counci l ’s] status as a federally recognize d accrediting agency is restored effective as of December 12, 20 16 ” and “[p]ursuant to 34 C.F.R

. § 602 .37(h), [the Accrediti ng Cou ncil ] w ill remain in th at status until such t ime as [the4 Secretary] r each[es] a final deci sion on [the Accredi ting 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 furthe r revi ew o f [ the Accrediti ng Council ’s] petition

. ” I d. The Secretary order ed that

“ [the Accrediting Council] may respond to [this Court ’ s Memorandum Opinion ] in writing ” an d

“ should explain whether and to what extent the Part II submissio n documents are releva nt t o i ts compliance wi th the regulatory crit eria or i ts ability to co me into compliance within [twelve]
months. ” I d. at 2. The Secretary further directed a “ [s]enior [d]ep artme nt [o]fficial [t o] respond
i n writing to [t he Ac crediting Council ’ s] submissi on[.] ” Id

. C. T h e Secre tary ’ s R econsideration o f th e Accrediting Council ’ s January 2016 Petition
On September 28, 2018, the Depa rtment ’ s Principal Deputy Under Secretary, Diane Auer
Jones ( “ the Deputy Under Secretary ” ) , submitted her re newed re commend ation to the Secre tar y
. See S e nior D epartment Offic ial ’ s Response to ACICS a t 1 , Accreditin g Council for Ind. Col ls. &
Schs. , U.S. D ep ’t of Educ., N o. 16

- 44

- O ( Sept. 28, 2018), https://www2.ed.gov/about/offices/list/ope/sdorespon setoacics92818.pdf

. The Depu ty Under
S e cr etary recommended to the Sec retar y “ that [the Accrediting C ou ncil] be granted continued recognition with the condition tha t it submits a compliance r eport within [twelve] months demonstrating full compl iance with 34 C [.]F[.]R[.] §§ 602.15(a) (2) and (a)(6). ” I d. at 76 ; see
also Am. Compl. ¶ 6 3 ( representing that “ [o ]n September 28, 2018, Jones[, the Department
official who was assigned to revi ew the A ccrediting Council ’ s 201 6 petition,] recommen ded that [the] Secretary [ ] grant [the Ac crediting Counci l tw elve] mon ths of continued recognition to
come into full compli ance ” )

. 4

4 Th e plaintiffs a llege in passing that the Deputy Unde r Secretary ’ s renewed recommendation contained e rrors, inclu ding th at the Deputy Under Secretary “purported to rely on nine le tters of support from other i nstitutiona l accrediting ag encies[,]” that “did not exist[,]” Am. Compl . ¶ 64, and that , when the error was ident ified, the Deputy (continued . . . )5 On November 21, 2018, t he Sec retary agreed with the Deputy Under Se cretary ’ s
recommendation and “ f[ou ]nd [the Accrediting Council] noncomplian t wi th § § 602.15(a) (2)
and 602.15(a ) (6) [,] ” b ut “ compliant w it h the remaining [nin e teen] criteria subje ct to additio nal reporting require ments detailed in [the S e cretary ’ s ] analys is. ” Accrediting Council for Ind

. Coll s. & Schs., U.S. Dep ’ t of Educ., No. 16

- 44

- O , a t 8 (Nov

. 2 1, 2018) , https : //www2.ed.go v/about/offices/list/ope/final

- age ncy - dec ision

- acics

- no vember

- 2018.pdf ; see
also Am. Comp l. ¶ 67. The Secretary therefore “ grant[ed the Accr editing Council] continued

reco gnition with the conditi on that it submit compliance reports wi thi n [twelve] mont h s
demonstrat ing full complian ce ” wit h §§ 60 2.15(a)(2) and 602.15(a)(6)

. Accrediting Council for
Ind

. Coll s. & Schs., U.S. Dep ’t of Educ., No. 16

- 44

- O , a t 8 (Nov. 21, 2018) , https : //www2.ed.gov/about/offices/list/ope/final

- agency - dec ision

- acics

- november

- 2018.pdf ; s ee
also Am. Compl. ¶ 67.
D. T he Accrediting Counci l ’ s Review of Vi rgin ia College ’ s Accre d i tati on The plain tiffs allege that they “ attended Virg inia College, one of [ the Education al Corporation of America ’ s ( “ Educational Corporation ” ) ] schools , [located] in Richmond[, Virginia]

. ” Id. ¶ 78. According to t he plaintiffs, “ Virginia Col lege was n ot able to earn

ac c redit ation from any[ other accrediting agency] beside s [the Accrediting Council ]

. ” Id. ¶ 80.
The plaintiffs assert that although “ Virginia College an d many other [Educational C orporati on ]
schools s ought accredita tion fr om the A ccrediting Co uncil fo r Continuing Educa t i on [ and ] Training ( [ ‘ ]ACCET[ ’ ] ) ” afte r the Secretary denied the Accrediting Council ’ s January 2016
(. . . co ntinued) Unde r Secretary i ssued a corre c tion that “grossl y mi scharacterized and exaggerated the level of suppor t” in other letters t hat were cited to by th e Deputy Under Secretary , i d. ¶ 65 (discuss ing Correcte d Se nior Department Official’s Re sponse to ACICS, Accrediting Council for I nd. Colls. & Schs. , U. S. Dep’t of E duc. , No. 16

- 44

- O (Oct. 15, 2018 ), h ttps://www2.e d.gov/about/offices/list/ope/co rrectedresponsefina l.pdf )

. However, t he se alleged errors do not form the basis for either of the two counts of APA violations alleged by the plaintiffs , s ee Am. Compl. ¶¶ 97

– 110 (setting forth the plaintiff ’ s two counts) , and therefore the Court need not a ddress them.6 petition, ACCET “ denied accreditation to Virginia Col lege on May 1, 2018, [and] re a ffi rm [ed] that denial on August 31, [2018,] after [its] appeals panel foun d th at Virginia College failed to

meet n ineteen of [its ] instituti onal st a ndards

. ” Id.
Acc ording to the plaintiffs, after the Secretary ’ s Apri l 2018 Order, a ltho ugh “ [the Accrediting Cou ncil] reviewed the findings by ACCET [ concluding that Virginia College did not

meet ACCET ’ s insti tutional standards] , [it] did no t follow ACCET in r efusing to accredit Virginia Coll ege at that time. ” Id. ¶ 81. The plaintiffs asse rt that “ [i]nstead, [ the Accrediting
Co uncil] issued a directi ve to show cause why Virginia College ’ s accreditation s hould not be
wit hdrawn b y s uspension at [the Accrediti ng Counci l ’ s] August 2018 meetin g
. ” Id. The plaintiffs further allege that “ [a]fter that meeting, [the A ccrediting C ouncil] again extended Virginia College ’ s s how

- cause directive, the reby contin uing [Virginia College ’ s] accredi tation. ”
Id.
E. The Fa ll 2018 T erm The plaintif f

s allege that the Secreta ry ’ s April 2018 Order and the Accreditin g Council ’ s
decisions to “ issu[e] a di rective to s how cause ” to Virginia Col lege and to “ exte nd[] Virginia College ’ s show

- cause directive [,] ” i d. ¶ 81, “ enable d Vir ginia Col lege to enroll st u d ents, including [the pla intiffs] , for the Fall 2018 term

— and all owed the Department to issue [student]
loans to th em [

. ] ” I d. ¶ 82. The plaintiffs allege that they “ took on thousan ds o f dollars in Departme nt

- issued debt to pay th e quarterly tuit io n ” but, “ [ i]f Virginia Co llege had not again
been able to claim accredit ed status, or e ligibility for federal stude nt aid, [the plaintiffs] would
not have enrolled for the Fall 2018 term. ” Id.
Th e plaint iffs asser t that “ [d]uri ng the Fal l 201 8 term, [th ey ] were complet ing fieldwo rk requirements for their degree that were not scheduled to be completed until late D ecemb er 20187 or January 201 9. ” 5 Id. ¶ 83. Ka iser alleges that as of “ Dece mber 2018[,] . . . th e only

re quirements tha t [he] had to fulfil l to e ar n his [occupa tional therapy assistant] degree were t wo fieldwork placem ents. ” Pls. ’ O pp ’ n, Exhibit ( “ E x
. ” ) 2 ¶ 1 (Declar ation of Mark Kaiser ( “ Kaiser
Decl

. ” )). He further asserts that “ [ w]hen [Virgin ia College] a nnounced [that ] it was c losing on
Decemb er 5, 2018, [he] was doing fieldw ork at Circle Center Adult Day Services in Richm ond, Virginia[,] ” where “ he had sta rted

. . . on November 26, 201 8 [,] ” id. , Ex. 2 ¶ 2 (Kaiser D ecl.) , after “ ha[v ing] previou sly left a di fferent fieldw ork placem ent because it w as not a good fit [,] ”
id. , E x. 2 ¶ 3 (Kaiser Decl.). Because “ [ K aiser ’ s] program required that [he] do eight we eks at a fieldwork placement in order to earn credit , ” he w as supposed to “ comp lete the fieldwork at
Cir cle Center in mid

- J a nuar y 2019

. ” Id. , Ex. 2 ¶ 4 (Kaiser Decl.). Passut makes similar allegations. He asser ts that as of “ December 2018[,] . . . the onl y requirements that [he] had to fulfill t o earn [his occupational therapy as sist ant] de gree were two fieldwork pla c ements

. ” Id. , Ex. 3 ¶ 1 ( Dec laration of Mark P assu t ( “ Passut Decl. ” ). He further alleges that “ [w]hen [Virginia College] announced [that ] i t was closing on December 5, 2018, [he] w a s doing [his] fieldwork at Lancash ire Convalescent and Reha bilitation Cen ter in
Ki l mar n ock, V irgi n ia[, ] ” and that he “ had star t ed at L ancashire on November 12, 2018 [,] ” i d. , Ex. 3 ¶ 2 (Passut Decl.) , after “ ha [ving] previou sl y left a different fieldwork placement be c ause it

5 The Court notes that t her e appears to be a disc repancy between the plaintiffs ’ decl arations appended to their opposition to the defendants ’ motion to dismis s and the Amended Complaint regarding the intended end dates of the plaintiffs ’ fieldwork. Compare Pls. ’ Opp ’ n , Ex. 3 ¶ 4 (Passu t Decl.) (attesting that the plaintiffs were supposed to “complete the[ir] field work in mid

- January 2019 ” (emphasis added) ) ; id

. Ex. 2 § 4 (Kaiser Decl.) (same) , with Am. Compl. ¶ 83 (alleging tha t “ [d]uring the Fall 2 018 term, [the plaintiffs ] were comple ting fieldwork requirements for their de gree that were not scheduled to be completed un til late December 2018 or January 2019 ” (emphasis added) )

. However, r egardless of whether the pla intiff s were intended to complete their f ie ldwork in “ late Decem ber 201 8 ” or

“ mid

- January 2019 [,] ” there does not appear to be any dispute that the plaintiffs ’ f iel dwo rk was scheduled to be completed after the closure of Virginia College o n December 18, 20 18

. S ee generally Def s. ’ Mem

. ; Pl s. ’ Opp ’ n; Defs. ’ Reply

. Acco rdingly, b ecause the end date of the plaintiff s ’ fieldwork is only relevant to the plaintiff s ’ asserted theor ies of inj ury and the Court ’ s standing analysis to the extent that the plaintiffs alleg e that they could not complete their fieldwork prior to Virg inia College ’ s closu re 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] pr ogra m req uired that [he] do eight weeks at a fiel dw ork placement in order to earn cre dit, which mean t [that he]
would c omplete the fieldwork in mid

- January 2019. ” I d. , Ex. 3 ¶ 4 (Passut Decl.)

. F. T he Closure of Virginia C ollege The pla intiffs al lege that “[o] n Dec ember 4, 2018, [th e Accrediting Council] withdrew
accred itation from Virginia College [,] ” Am. Compl. ¶ 84, “ [o ]n December 5, [ 2018 , ] V irginia College an no unced that it would shutter its doo r s , ” id. ¶ 85 , and “Virg inia College ’s Richmond

ca mpus ultim at e ly clo sed on December 18 [, 2018,] ” i d. ¶ 86. According to t he plaintiffs , they were informed by an email fro m Kat hryn Rainey, “[ thei r ] program ’s Academic F ie ldwork
Coordinator , ” id. , Ex. 2 ¶ 3 (Kaiser Decl .), that “b ecause [ t he y w ould] not be finished [w i th the ir fieldwork] [ ] by December 18[, 2018,] when [ Virgin ia College would ] close , [ t he y would] not
be able to fini sh [ their ] fieldwork [

. ] ” I d. , Ex. 2 ¶ 6 ( Kaiser Decl.) (internal quotation s om itted ) ;
see also id. , Ex. 3 ¶ 7 (Passut Decl.). The pl aintiff s all ege that “ [b]u t for the closure o f Virginia Colleg e ’ s Richmond campus on December 18, [2018, the y ] would have been able to finish their
fie ld work, and therefor e receive cre dit for the Fall 2018 term. ” Am. Compl. ¶ 87.
G. T his Case
O n June 3, 2 019, t he p l aintiff s initiate d this ac tion , alleging th at the Secret ary ’ s April 2018 Order violated the APA

. See id. ¶ 1 , 10 2, 104, 111

. On Se ptember 23 , 2019, the
defendants filed thei r motion to dismi ss the pla intiffs ’ Amended Complaint , see D ef s
. ’ Mot

. at 1, on the grou nds that “ the Court lacks jurisdiction and [the p ]laintiffs fai l to state a plausible claim
to rel ief [,] ” Def s. ’ Mem . at 1 , and, on November 20, 20 19, the pla intiffs filed their motion for
class certification , s ee Pl. ’ s Mot. at 1. T hese m otions are t h e subject s of this Memorandum Opi nion.9 II. STANDARD O F R EVIEW
Federal di strict courts are court s of limite d ju ris diction, Kok konen v. G uardian L ife Ins.
Co. of Am

. , 511 U.S. 375, 377 (1994), and therefore, “[a] motion for dismissal under [Federal
Rule of Civi l Procedu re] 1 2(b)(1) ‘presents a threshold challen ge to the [C]ourt’ s jurisdiction[.]’”
Mo r row v. Uni t ed Sta tes , 723 F. Supp. 2d 7 1, 75 (D. D.C. 2010) (Walton , J.) (quoting Haase v.
Sessions , 835 F.2d 902, 906 (D.C. Cir. 1987)) . Thus, the Cou rt is ob liga te d to di smis s a claim if
it “lac k[s] [ ] subject [

- ] m atter jurisdiction [.]” Fed. R. Civ. P. 1 2 (b)(1). A n d, bec ause “it is to be

pres umed that a cause lies outs ide [ ] [the Court’s] limited jurisdiction,” Kokkonen , 511 U.S. at
37 7, the plaintiff “ bears the burden of establishing ” that the Court has subject

- matter jurisdiction , Lujan v. Defs. o f Wildlif e , 504 U.S. 555, 5 61 (1992). In deciding a motion to dismiss based upon lack of subject matter jurisdic tion, th e Co ur t
“need not limit itself to the allegations of th e complaint.” Gra nd Lodge of the Fratern a l Ord. of

P oli ce v. Ashcroft , 185 F. Su pp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such materials outside the pleadi ngs as it deems appropri ate to resolv e th e question [of] whet her it has jurisdi ction to hear the case.” Scolaro v. D.C. Bd . of Ele c tio ns & Ethics , 10 4 F. Supp. 2d 18, 2 2 (D.D.C. 2000); s ee also Jerome Stevens Pharms., Inc. v. FDA , 402 F.3d 1249, 1253 (D.C . Cir. 2005). A dditiona lly, t he Cour t mu s t “assume the truth of all material f actual allegations in the complaint and ‘ c on strue th e co mpl aint liberal ly, granti ng [the] plaintiff the bene fit of all inferences that can be derived from the facts alleged[.]’” Am. Nat’l Ins. Co. v. Fed. D eposit Ins. Corp. , 642 F.3d 113 7, 1139 (D.C. Cir. 2011) (quoting Th omas v. Principi , 394 F

. 3d 970, 97 2 (D .C. Cir. 2005)) . However , “the [p ]laintiff’s factua l allegations in the complaint . . . will bear closer scrutiny in res olving a 12(b)(1 ) motion tha n in reso lvin g a 12(b)(6) motion for failure to10 sta te a claim.” Gran d Lodge , 185 F. Supp. 2 d a t 13

– 14 ( alt era tions in ori ginal) (ci tation an d internal quotati on marks omitted).
III. ANALYSIS
The defendant s move to dismiss the plaint iffs ’ Amended Complaint for la ck of

s ubject

- m atte r jurisdiction , argu ing that “ [the p]laintiffs lack stan ding

. ” 6 Defs. ’ Re ply a t 2

. Spec ifica lly, the defend ants argue that (1) the plaintiffs ’ “ alleged injur [ies]

. . . [are ] not trace able to the Secretary ’ s [ April 2018 Order , ] ” D ef s
. ’ Me m. at 1 ; (2) “ even if [ the plaintiff s ’ alleged injur ies were ] tra ceable t o the Secret ary ’ s [Apr i l 2 018 Or der] , the so le relief in an APA suit suc h
as this

— setting aside the challenged decision

— would not impact, let alone redress, t he injuries claimed[ , ] ” i d. ; and (3 ) the plaintiffs ’ alleged injuries d o not constitute injuries

- i n - fact because
th ey ar e e i ther “ not ac tu al and concre te ” or “ se lf

- inflic ted[

. ] ” Defs. ’ Rep ly at 15. In oppositio n , the plaintiffs argue that they have standing because (1) “ [ t] hey in curred substantial debt to the Dep artment to attend Virginia College for the Fall 2018 te rm [

— ]d eb t which could not ha ve been
i ssued but for the D epartment ’ s unlawf ul reinstatement of [the Accred iting Coun cil in the Secretary ’ s April 2018 Order , ] ” P ls

. ’ Opp ’ n at 1; (2) “ th e Court can provid e several r emedies
sufficient to redres s [their] injuri es: it c a n vaca te [ t h eir] loans, it c an enjoin [the d]ef endants f ro m
conti nuing to collect on the [ loans] , and it can declar e that [the loan s] are un enforceabl e[ , ] ” id

.
at 2 ; and (3) the “ [p]laintiffs [,] . . . th rough no fault of their o wn, co uld not have finishe d th e ir
fieldwork and received cr edit for t he term b y the time the sch ool closed [,] ” therefore, “ whether [the p]laintiffs ’ injury is properly construed as th e fina ncial obligations imposed by their student

6 T h e defendants argue i n the alter native that (1) the C o urt lac k s su bject

- matter jurisdict ion b ecause the plaintiff s

“ ch alle nge a facially int erim d ecision . . . in contravention of the bedr ock principl e that an i nterim d ecision i s not

‘ final agency action ’ r e viewable under the APA[ ;] ” Defs. ’ Mem . at 1 (emphas i s in or iginal), and (2) the Court shoul d dismiss the plai nt i ffs ’ Amended Complaint pur suant to Rule 12(b)(6) because the plaintiffs “ fail to p lau sibly all ege tha t th ere is anything inh er ently erroneous , let al on e arbitrary and capr icious, in the Sec retary ’ s deci si on [;] ” id

. Because the Court c onc ludes that the pl ai ntiffs lack standing, it need n ot address the defendant s ’ other arguments.11 loans , or in conjunction with their lost cr edits, [t he p]l aintiffs have adequate ly pleaded [a n] injury [

- ]in[

- ]fact[ , ] ” i d. at 13

. For the reasons that follow, the Court ag rees with the defendants
that t he C o urt l acks subject

- matter jurisdictio n because t he plaintiffs have not demonstr ated
Article III sta ndin g
. “Artic l e III of the Con s titution l imits the jurisdiction of f edera l courts to ‘Cases’ and
‘Controversies.’” Susan B. Anthony List v. Driehaus , 573 U .S. 1 49, 157 (2014) (citing U.S.
Con st. art. II I, § 2). “In an attempt to giv e meaning to Arti cle III ’ s c ase - or - c ontroversy requi r ement, the courts h ave developed a se ries of principles termed ‘justiciability doctrines,’ among which are standing[,] r ipen e ss, m ootness, and the political ques tion doctri ne.” Nat’l Treasury Emps. Unio n v. United S tate s , 101 F .3d 1423, 1 427 (D.C. Cir. 1 9 96) (quoti ng Allen v. Wright , 468 U.S . 737, 750 (1984)). If a plaintiff lacks Article III standing, a district court

n eed n ot de lve into [a plaintiff’s] myriad constituti onal and statutory claims . . . because a co urt may not res olve co n tested questions of law whe n its jur isdiction is in do ubt, as [h]ypothetical jurisdiction produces nothing more than a hypothetical jud gm ent

— w hich comes to the same thing as an a dvisory opi nion, disapproved by [the Supre me] Court fro m th e b egin n ing

. Am. F reedom L. Ctr. , 1 06 F. Supp . 3d at 1 08 (first , third, and fourth alterations in original) (first quoting Crow Creek Sioux Tribe v. Brow nl ee , 3 31 F. 3d 912, 915 (D.C. Cir. 2003); t hen quoting
Steel Co. v. Citizens for a Be tter Env’t , 5 23 U .S. 83, 101 (1998) )

. [T]he irreduci b le constit utional m inimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fa ct”

— a n inv asion of a legally protected in terest whic h is (a) concrete and particula rized, and (b ) “a ctu al o r im minent, not ‘conjectural ’ or ‘hypot hetical.’ ” Second , there m ust be a causal connection between the injury and the conduct complained of

— the i nj ury h as to be “fairly . . . trace[able] t o the chall enged action of the defendant, and not . . . th[ e] resu l t [ of] the independent acti o n of some third par ty not be fore the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the i njur y will be “redressed by a favorable d ecision.”12 Lujan v. Defs. of Wildlife , 504 U.S. 555, 56 0

– 61 (1 992) (se cond, t h ird, fourth, and fifth
alte rations i n origina l) (citat ions omitted). “The absence of any one of these three elements defeats standing. ” New d ow v. Roberts , 603 F.3d 1002, 1010 ( D.C. Cir. 2 010)

. The Court begins by acknowledgin g t hat, as not e d b y the d e fendants, see Def s
. ’ Reply

at 3, the plaintiffs appear to allege mult iple injuries : (1) the plaintiffs ’ acquisition of student
l oans to attend Virginia College , which are, ac cor di ng to the plaintiffs , “ unlawful and void ab
ini tio ” ( t he “ p laintiffs ’ ‘ unlawful and void ab initio l oan s ’ t h eory ” ), Am

. Compl. ¶ 105 ; (2 ) the

“ additional d ebt [incurred by the plaintiffs] for a term in which they received no ac a de mic
credit ” ( the “ plaintiffs ’ ‘ loans but no credit ’ t he ory ” ), id

. ¶ 106; and (3) t he fact that t he plaintiffs

“ received no credit for the s everal months of ti me a n d w or k the y spen t in the Vir ginia College

progr am du ring the Fall 2018 term ” ( the “ plain ti ffs ’ ‘ no credit for time and work ’ theo ry ” ), id. ¶ 88 ; s ee also Pls. ’ Opp ’ n at 1 2

− 1 3 ( referring to the pl a intiffs ’ “ los t credits ” )

. The defen dant s respond that “ [ e]ac h theory of inj ury has its own s tan ding deficiency, bu t the theories [also] share two fatal standing defe c ts

— neither is redressa ble by this Court, an d neither is fairly tra ceable to
the S ecr etary ’ s [April 2018 O]rder. ” Defs. ’ Reply at 3

. The Court wi ll a d dress each of the plaintiffs ’ t heo r ies of injury i n turn.
A. The Plaintiffs ’ “ Unlawful and Void ab Initio Loans ” Theo ry The plain tiffs allege that t he y were injured by the S ecretary ’ s Apri l 2 018 Ord er becaus e
the Order en abled them to “ tak[e] o ut l o a ns that the Depar t ment could not lawful ly issue. ” P ls. ’
O pp ’ n at 12 ; s ee Am. Compl. ¶ 105 (alleging that “any loans issued by the Depa rtment for the

purp os es of attending [Virgin ia College and oth er schools accre d ited by the Accrediting Counsel] dur ing t h e i nter i m recognit ion period were unlaw ful and void ab ini tio ”). For the13 following reasons, t he Court concludes that th is theory of in jury fails both the injur y - in

- fact and

causa tion prongs of the standing analysis.
1. Injury

- in

- Fact
The defendant s argue that the plaintiffs ’ lo ans , e ven if “ unla w ful and void ab init io , ” as the plainti ffs contend , Am

. C omp l . ¶ 105, do not constitute an “ inj ury - in

- fact ” for pu rposes of
A r ticle III st a nding because “ [the p]laintif fs do not of fer any concrete consequences that came
from this alleged i nju ry. ” Defs. ’ Re p l y at 15. The Court ag rees with the def endants

. F or purposes of Article III standing, an in jury must “ affect [ a plaintiff ] in a pers on a l and
individua l way [ , ] ” Lu j an , 504 U.S. at 560 n.1 , and “ must [ ] be con cr ete [

. ] ” Spokeo , Inc. v

. R obi ns , __ U.S

. __, 136 S. Ct. 1540, 1548 ( 201 6 ) . To be con crete, a n injury must be “ direct,
real , and palpable

— not absta ct [,] ” Pub . Citizen, Inc. v. Na t ’ l Highway Tra ffi c Safety Admin

. , 489 F.3 d 1279, 1292 (D.C. Cir. 2007) , and i t also “ must be ‘ de fac to ’ : t hat is, it m us t actually
exi s t [

. ] ” Sp ok eo , 136 S. Ct. at 154 8 (emphasis in original)

. Furthermore, “ Articl e III standing requires a concrete in ju ry ev en in the conte xt of a statut ory viol ation. ” I d. at 1549. Thus,

“ [w] hen a n alleged statutory violation ‘ r esu lt[s] in no harm, ’ no inj u ry - in

- fact exists. ” Ta te v.
Nat ’ l Po s tal Mail Handlers U nion Loc

. 305 , No. 16

- cv - 2 021 , 2018 WL 2538445, at *2 (D. D.C

. A p r. 12, 2018) ( quoting i d. at 1550 )

. Here , t he plaintiffs argue that they have standing because they took on “ unlawful and
void ab initio ” loans “ tha t, but for the Department ’ s illegal conduct, could not have b een issued
under Title IV. ” Pl. ’ s Opp ’ n at 1 3 ; see also Am. Compl. ¶ 82 ( alleg ing that the plaint iffs “ took
on thousa nds o f dollars in De partment

- issu ed debt to pay [Virgini a College ’ s ] quarte rl y tuition ” ).

R e garding their loans, t he plaintiffs furth er a llege tha t [t ] h [is] case . . . raises th e qu estions [ ] whe ther [the S e c ret a ry ’ s April 20 18 Order] viol a ted the [APA] and, if so , wh ether loans that the D e pa rtment issued for tuiti o n14 and other e xpe nses at [Educational Corporation ] schools durin g the inter im recognition period are enforcea ble.

. . . In the absen ce of a val id a c creditor, the Dep artm e nt ’ s provision al ce rtifi cati on fo r [Education C orporation] schools woul d have expi re d on June 12, 201 8, ei ghteen months afte r the D e partment ’ s f inal derecogni tion decision was entered in December 2016. Those sch ools t herefore would have become inel ig ib l e to recei ve fede ral student aid un d er Title I V [ of the Higher Education Act of 1965 ( “ Title IV ” )]

. 20 U.S.C. § 1099(c). Because the De partme nt ’ s decisi on to restore [the Accr e diting Council ’ s] a ccredita tion was unlawf ul, schools accredited by [the A ccrediting Co uncil] remained in eligible to receive fed e ral student a id , and any loans issue d by the D ep ar tment for the purposes of attendin g those schools dur ing th e interim recogni t ion period were unl awful an d void ab initi o
.

. . . For the reasons explai ned above, al l loans issued to attend [ ] schools [acc r edited by t he Acc redi ting Council] d uring th e in te rim recognition period, including [t he pla intiffs ’ ] l oans, are therefore une n forceable.
Id. ¶¶ 94, 105 , 112

. These allegations by the plaintiffs , that their loans w ere “ unlawful and void a b initio [,] ”
id. ¶ 105, fail to allege an inju ry t hat is suffici e ntly “ conc rete [

. ] ” Spokeo , 1 36 S. Ct. a t 1549.
Al though t he plain t iffs ’ allegations d emonstrate t hat the loans “ affec t the plaintiff[s] in a personal a nd individua l way [ , ] ” Lu jan , 504 U.S. at 560 n.1 ; see, e.g. , Am. Compl. ¶ 8 2 ( al leging
that th e plai ntif fs “ took on t housan ds of dollars in D epartment

- issued d ebt to pay the qua r terly

tu ition ” ); id. ¶ 89 ( a lleging that Pas sut “ was forced to pay tuition and expenses ou t[

- ]of[

- ]pocket [at his new scho ol] becau se he had reached the maxim um amount o f Departm ent

- bac k ed loans for which he was eligib l e ” ) , th is theory of injury re sts on the allegedly “ unlawful and v oid ab
initio ” n ature of the loans , s ee, e.g. , Am. Compl. ¶ 105 (alleging that the loans were “ unlawful
and void ab ini ti o ” ); id. ¶¶ 112 ( arguing that, because the loans are “ un lawful and void ab initio , then th ey “ are [ ] une nforceable ” ). But , a s the def endants correc tly note, the pla i ntiff s have15 presented no allega tions that the all e gedly “ illegal ” nature of the loans

— distinct from the
inherent financial obligation associated with the acquisitio n of any loan

— “ s trip[s] any benefits
f rom [the p]lain tiffs [, ] ” D efs. ’ Reply at 16 , or ha s any “ direct, r eal , and pa lpable ” effects, Pub.
Citizen , 489 F.3d at 1292

. S ee generally Am . Compl. Moreover , the pl ainti ffs ’ Amended Complaint fails to demonstrate how the al lege dly “ unl awful and void ab ini tio ” n atu re of th e plaintiffs ’ loa n s , see id. ¶ 105 , “ d irectly in fringe[s] upon any of [the p]laintiff[s ’ legal ] right s[

. ] ” Massey v. Am. Fed. of Gov ’ t Emps. , 196 F. Supp. 3d 25, 39 (D.D.C. 2016). Rather , the plaintiff s ’ all egations merely establi sh that t he p la intiffs r ecei ved the benefits that n o rmally

accom pany t he issuance of student loans

— namely, the financial ability to attend an educ ation al
institution

. 7 S ee Am. Compl. ¶ 88 (noting “ t he several months of time and work [th at the plaintiffs] sp ent in the Virginia Co llege p rogr am during the Fall 2018 term ” )

. W i t h ou t any allegat ion that the allege dly unlawful nature of the plaintiff s ’ loans resulted
in “any concrete consequence[,] ” Hancock v . Ur ban Out fitters, I nc. , 830 F.3d 511, 514 (D.C. Cir.
2016 ), t h e C ourt must c onclude that t he p laintiffs have not demonstrated a n i n j ury - in

- fact as to
th is theory of injury

. A cco r dingly, the C ourt concludes that the plaintiffs have not demonstrated that their alleg edly “ unlawful and vo id ab initio ” loa ns, Am . Compl. ¶ 105, const it ute an injury

in

- fa ct.

7 To t he extent t hat the Ame nded Complaint could be c onstrued to a llege that the pl aintiffs obtained “ unlawful ” lo ans a nd were, subseque ntly , unable to receiv e cr edit for the cou r sewor k fo r wh ich those loan s were paid , the plaintiffs explicitly disa vowed any connecti on between t h eir “ unlaw ful and void ab initio loans ” th eory of inj ury and the ir lack of course c redit. See Pls. ’ Opp ’ n at 13 ( “ [The d ]efenda nts ’ A PA viol at ions injure d [the p laint iffs] and other mem b e rs o f the proposed class by enabling the Department to issue d ebt that, bu t f or the De partment ’ s illegal condu ct , could n ot have been issued under Titl e IV ” and t his “ injury . . . exis ts whet her or not a pa rticular st udent

bo rrowe r received credits an d r e gardless of the partic ular reason a student

- borrower may no t have rece ive d credit

. ” ). The Co urt will addr ess the two theories of injur y that rest upon the plaintiffs ’ failure to recei ve course credit in mo re detail la ter in th is Memorandum Opinion

. See in fra Se ction III.B (a ddre ssing the plaintiffs ’ “ loans but no credit ” theory ); Section I II.C (ad dressing th e plaintiffs ’ “ no credit for time and work ” theory ).16 2. Causation
Even if the Cour t agreed with th e p l aintif fs that the acquisition of their alleged ly unlawful
l oans constitut ed an injury

- in

- fact, the Court would nonetheless be compelled to conclude that the pla intiffs have failed t o s ho w tha t this injury is “ fairly traceable ” to the Se c ret ary ’ s April
2018 Order. 8 Luja n , 5 04 U.S. at 560

– 61

. The pl ain t iffs e xp l ain t heir allegati ons of causat ion as
follows: [B]e cause of [the ] Sec retary [ ’ s ] April 2 018 [Order], [Vir ginia] Coll ege
. . . rem a ined a ccredited past Jun e 12, 2018 [

— t he da te on w h ich t he t emporary extension of acc redi t ation to the Accrediting Co u ncil (a n d, t h ereby, the
va lidity of the accredi tations issued by the Accrediting Council ) would hav e lapsed w ithout the Secretary ’ s April 2 0 18 Order ]. After receiving temporary
rec o gnition fro m [the] Secretary [ ] , [t he A ccrediting Council] review ed the fin di n gs b y ACCET, but d id not follo w ACCET in refus ing to accredit Virginia College at that time. Instead, it issued a directive to show c a use why Virginia C ollege ’ s accreditation s hould n ot b e withdrawn by suspension at [the Accrediting Council ’ s ] A ugust 2 01 8 mee t ing. After t hat meeting, [the Accrediting Council] again extended Virginia College ’ s show

- cause d irective, th ereby cont inuing i t s accredi tat ion. F or many of the areas in which A CCET had found Virginia Colle ge n on - compliant, [the Accredi tin g Counc il ] fou n d that the al leged defici ency [did] not result in non

- compliance with [the] standards [of the Accre diting Counc il ].
Th ese ac t i on s enabled Virginia Colle ge to enroll stud e nts, i n clud ing [the plaintiffs] for the Fall 2018 term

— and allowed th e De p ar tm ent to issue loans to them. In [the plaintiffs ’ ] cases, they took on th ousands of dollars in Department

issued debt to pay th e quart e rl y tuition. If Vir g inia College had not ag ain be e n ab le to claim accredited st atus , or eligibility for f eder al student a id , [the plaintiffs ] would not have enrolled for the Fall 201 8 term.
Am. Compl. ¶¶ 81

– 82 (internal quot ation marks and footno tes omi t te d)

. To satisfy t he causation requirement of Ar t icle III standing , a plaintif f “ m us t demonstrate

‘ a causal con nection b etween the injury a nd the condu ct complained of ’ such that the ‘ injury in

8 T he Cou r t ac kn owledges tha t this argument was not raise d by the defendants

. See g enerall y Defs

. ’ Mem

. However, “ c ourt s . . . ha ve an independent obligation t o determine whether su bject

- matter j uris d iction exi sts, ev en in the absence of a ch allenge from any pa r ty

. ” A rbaugh v . Y&H Corp. , 546 U.S . 50 0, 514 ( 200 6); 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 th e action. ” ) ; Lee ’ s S u mm i t v. Sur face Transp. Bd. , 231 F.3d 39, 41 (D .C. Cir. 2000 ) ( “ When there i s dou bt about a party ’ s constit utio nal standi ng, the court must resolve the doubt, sua sponte if need be. ” ).17 fact ’ is fairly traceable ‘ to the challenged action of the d ef endant, ’ and not t he result of ‘ the indepe ndent a ctio n of some third party not bef ore the [C]ourt. ’ ” Ctr. f or B io. Di ve rsity v. Envtl.
Pro t. Agency , 8 61 F.3d 174, 182 (D.C. Cir. 2017) (quoting Lujan , 504 U.S. at 560 ). “ [ F ] a ir

tra ceability turns on the cau sal nexus between [an] agency action and the as s ert e d i n jury [,] ”
F reedom Republic ans, Inc. v. Fed. Election Co m m ’ n , 1 3 F.3d 41 2, 418 (D. C. Cir. 1994) , and requires a plai ntiff to demonstrate “ a substantial probability tha t the substa ntive agency

a ction

. . . created a demo nstrable r isk, or caused a dem o nst r abl e increase in an exist ing risk, of injury to the par tic u larize d interes ts of the pl aint iff [

. ] ” Fla. Audubon Soc ’ y v . Bentsen , 9 4 F.3d 658, 669 (D.C. Cir. 1996). One such example is that “ sel f

- inf l i cted harm[s a re] not fairly

tr ace able to the chal len ged gov ernme nt c o nduct. ” Grocery Mfr s. A ss ’ n v. Envtl . Prot. Agency , 69 3 F.3d 1 69, 177 (D.C. Cir. 20 12) ; see also Ellis v. Comm ’ r of Internal Revenue S e rv. , 67 F. Supp. 3d 325, 336 (D.D.C. 2 014) ( notin g that “ it is w ell

- settled in th is jurisdiction tha t s elf

inf licte d in j uries

— injuries that are substantially c aused by the pla intiff ’ s own conduct

— sever the
causal nexus needed to establish standing ” ).

H ere, t he plaintiffs ’ alleged in jury

— the allegedly “ u n lawful and void ab initio ” loans they acquired f ro m the Depa rtment in order t o attend Virgin i a College for the Fall 2018

semester

— is a “ s elf

- inflicted h arm[] ” t hat is “ not f airl y traceable to the ” S ec retary ’ s April 2018
Order. Grocery Mfrs. Ass ’n , 693 F. 3 d at 177. A s th e Co mplaint acknowledges, the plai ntiffs
th e mselves obtained the loans tha t no w constitute t h eir alleged injur ies

. See Am. Compl. ¶ 82 ( ackno wledging th a t t he pla in tiffs “ took on thou sa nds of dollars in Department

- issued debt to pay the qu arterly tuition ” ) ; see also Pls. ’ Opp ’ n at 12 (ar guing tha t th e “ [p]laintiffs a dequately
alle ge tha t they we re in jure d by taking out loans tha t the Department could not l awf ully i ss ue ” )

. Despite the plaintiffs ’ voluntary actions, they ar g ue that the ir all eged inj ury was caused by the18 S ecreta ry ’ s April 2018 O r der because “ [i] f Virginia College had not again been ab le to claim

a ccr edite d status, or eligibility for federal student aid, [the p l ain tiffs] w ould not have enrol l ed for
the Fall 201 8 term [,] ” Am

. Co mpl. ¶ 8 2, and wo uld no t have acquired “ debt that, but for the Depar tment ’ s illeg al conduct [in is suing the Apr il 2018 Order], could not have been issu ed un d er
T itle IV [ , ] ” Pls. ’ Opp ’ n at 13.
The C ou rt acknowledges th a t the S ecretary ’ s Ap r il 2018 Order i s part o f the bac kground agai nst whi ch the plaintiff s ’ alleg ed inju ry occurred

— as was the Accrediti ng Council ’ s failure to

ens ure t hat Virginia College m et accr editation standards, see Am. Comp l. ¶ 8 1 ; Virginia College ’ s failure to secure accreditation fro m oth e r accreditors , see id. ¶ 80 ; V irginia College ’ s
failur e to ma ke improvements to ensure that i t retained accreditation th rough the Accrediting
Council , see id. ¶ ¶ 81, 84 ; and th e Accr e diti ng Cou nc il ’ s two decisions postponing the decision
to withdr aw accredit ation from Virginia Colleg e un t il December 4, 2018 , id. ¶ 8 1

. See Defs. ’ Reply a t 11 ( noti ng that the “ [p]laintiffs c laim [that ] this long chain of eve nts [ , culminating in the
clo s ure of Vi r gi nia College ,] was m ade possible only because the Secret ary ’ s [A pril 2018 O]rder
allowed Vir ginia Co lleg e to keep it s accre ditation and to theref or e stay o pen ” )

. How ever, “ t he only real effect ” of the Secretary ’ s Ap ril 2018 Order, which tempor a rily

exte n de d the accreditatio n of the Accrediting Council, “ [wa]s to provi de [students] t he option ” to
attend scho o ls accredit ed by the Accredi ting Co uncil for the Fall 2018 term

. G r o cer y Mfr s.
Ass ’ n , 693 F. 3d at 177

. B ecause of the S ecretary ’ s Ap r il 2 01 8 Or de r, the Accrediti ng Council retained the ability to accredit Virginia College and other sc hoo ls, see Am. Compl. ¶ 81, whi ch thereby gave t he plaintiffs “ t h e optio n [ ,] ” G r o cer y Mfr s. Ass ’ n , 693 F. 3d at 177 , o f attending
thos e sch ools and acquiring loans to do so , s ee Am. Compl. ¶ 82

. “ T o th e ex tent ” th at the plaint iffs c ho se “ th at optio n volunta rily, any injury they incur[ r ed] as a result is a ‘ self

- inflicted19 har m ’ no t fai rly traceable to t h e challenged government conduct. ” G r o ce ry Mfrs. Ass ’ n , 693
F. 3d at 1 77 (concludi ng that the group of plaintiff petroleum re fin ers and impo rters ha d not
d emonstrated standing to chal leng e the agency ’ s ap proval of the use of a pa r ticular gasoline

ethan ol blend because “ the on ly real e ffec t of [th e age ncy ’ s a ction] is to prov id e fuel

man ufacturers th e option to introduce [the] new f uel[ an d t]o the e xt ent the petroleum g roup ’ s
members i mplem ent that option voluntarily, any injury t h ey incur as a result is a ‘ self

- inf licted
harm ’ not fai rly t raceabl e to the challenged gover nmen t conduct ” ) ; see also Mir v Holdings, LLC
v. U .S. Gen. S e rv s. Admin

. , 4 54 F. Su pp. 3d 33, 44 (D.D. C. 20 20 ) (Wa lton , J.) ( concluding that

“ any injury suffered by the plaintiff [wa] s substantially caused by the plaintiff ’ s o wn condu ct , ”
whe n “ [t]he pl aintif f kn ew of t he [agency ’ s] posi tion that the proposed inclusio n of dwe lling
units [o n a property wa] s in consistent with th e acceptable uses [for this propert y]

. . . , b ut nevertheless chose to pro cee d with [the plaintiff ’ s] dev elopment plans, which included th e
dw ell ing units, despite hav ing knowledge regarding the [agenc y ’ s] position ” (i nt ernal quotation

mar k s omitted) ). 9

T he plaintiffs ’ acquisition of thei r loan s to atte nd Virginia College for the F all 2018

semest er was “ clearly i ndependent of ag ency a ction [,] ” Scahill v. Di strict of Columbia , 271 F. Supp. 3 d 216, 230 (D. D. C. 201 7), a nd th erefo r e “ break[s] the causal chain [ ,] ” Petro

- Chem
Proce s sing, Inc. v. E nvtl

. Pr ot. Agency , 866 F. 2d 433, 438 (D.C

. Cir. 1 989) , be tween the Secretary ’ s April 2018 Order and the plaintiff ’ s loans

. Accordingly, the Court concludes t hat , t o

9 Moreover, th e Court notes that the plaintiffs allege that “ [p]rior to [the Secretary ’ s April 201 8 Order ] , [Virginia] College ’ s then

- P r esident re peatedly said that [the ] Secretary [ ] would reverse [the Accrediting Council ’ s] derecognition ” and “ in or about February 2018, Virginia College held town ha lls to assure students that it would remain accredited. ” Am. Compl. ¶ 79. Therefore, according to the plaintiffs ’ allegations, by the time the Secretary issued h is April 2018 Ord er, students at Virginia College had access to information that (1) the Accrediting Council ’ s own accreditation ; (2) its corresponding ability to issue accreditation to Virgin ia College ; and (3 ) Virginia College ’ s accredit ati on were , at minimum, not foregone conclusions

. Accordingly, when the plaintiffs acquired their loans t o attend Virginia College for the Fall 2018 semester, they did so against a back drop of uncertainty as to whether Virginia College would retain its accreditation

.20 the extent that th e plaintiffs allege that they acquired loans that were “ unla wfu l and void ab
in itio [,] ” Am. Compl. ¶ 105, their injury is ne ither an in jury

- in

- fact no r fairly traceable to the Secretary ’ s Apri l 201 8 Order f or purposes of Article I I I st anding.
B. The Plain tiffs ’ “ Lo ans Without Credit ” Theory
The Court n o w turns to the plaintiffs ’ sec ond theory o f i njury : t h e Sec r etar y ’ s April 2018 Order, on which the plaintiff s “ r e lied . . . in deciding to en roll or re - enroll in [Educational Corpora ti on] Schools accredited by [ the Accre diting Council , ] . . . caused harm t o [the plai ntiffs] by sa ddlin g them with additional de bt for a t erm in wh ich they rece iv ed no academic credit. ”
Am. Com pl. ¶ 106. T he defendant s argue that t his “ injury is not fair ly tra ceable to the
Sec re tary ’ s [April 20 18 O]rder

. . . because the inde p endent acts of the Accrediting [Council]
allowed Vir gi nia Co lleg e to stay open, thereb y causing the harm. ” Defs. ’ Reply at 1 0. For the
followin g reasons , th e Court agrees with the de fend ants that the plain tiff s have no t adequately alleged causation as to the defendants for their “ loans without credit ” th e ory of injury

. As the ba sis for this theory of in jury , the plaintiffs ad vance the following chain of events

. The plaintiffs all ege that they “ relied on ” the Sec reta ry ’ s A pril 2018 Order in “ deciding to enroll

or re - enroll ” at Virginia Co llege for th e Fal l 2018 term , A m. C ompl. ¶ 106, because, without the
Order , they would have been unable to obtain federal loans to attend an una ccred ited scho ol , see
Pls

. ’ Opp ’ n at 13 (no ting that “ students must attend an eligible institution to be eligi ble for Titl e
IV lo ans ” )

. Then , the plaintiffs allege that because the Se c retary ’ s April 2018 Orde r allowed the
A ccrediting Counci l to mai nt ain its ac creditation in order f or it to, in t ur n, a c credit Virginia
Co lleg e, the plaintiffs t ook out loans from th e Department and at tend ed Virginia Coll eg e , th ereby injuri ng them by “ sa ddling them with additional debt for a te rm in which they r eceived

no academic credit. ” Am . Compl. ¶ 106. A nd, a ccording to the plaintiffs, the reason the y21 “ re ceiv ed no ac ademic cre dit ” for the Fall 2018 te rm is that “ the closure of V irgin i a College ’ s
Richmo nd campus on December 18, [2018,] ” precluded them from “ be[ing] able to fin i sh their
fie ldw ork [

. ] ” I d. ¶ 87. As alleged, this theory of injury ste ms f rom the ti ming of the loss of Virginia College ’ s

ac credited stat us and its subs eq u ent closure. Pu rsuant to this theory, i f Virginia College had

c losed after the date when t he pl ainti ff s ’ “ fieldwork require me nts for thei r degree [ ] were [ ]
sche dule d to b e comple ted[ , ] ” i d. ¶ 83 , the plaintiffs “ would have been able to fi nish t h e ir fieldwork, an d therefore [would have] receive [d] credit for the Fall 2018 term [ , ] ” i d. ¶ 87

. Si mil a rly , if Virgini a College had closed pr ior to the Fall 2 018 term beca use i t “ had not ag ain
been able t o cl a im accredited status, or eligibility fo r fed er a l student aid, [ the plaintiffs] would
not have enro lled for the Fall 2018 term [,] ” id. ¶ 82, and the r e f ore, they would not have incurred
the “ add itional debt [

. ] ” I d. ¶ 106

. However, as the defendants co rrectly note , “ it was the Accrediting [Coun cil ’s ]
in d ep endent action [s] that kept Virginia College accredited until Decem ber 4, 2018, when the
Ac crediti n g [Council] withdrew Virgin ia Coll ege ’s a ccreditation. ” Defs. ’ Rep ly a t 1 1

. A ccording t o the Amended Complaint , the Accrediting Council made two deci sion s t hat delayed
its w ithdrawal of accreditation from Virginia College until the end of the Fal l 2018 t er m , t hereby allowing stude nts, including the plainti ffs, to acquire l o an s to attend Vir gi nia College f or the

semester: (1) “ [a] fter receiving te mpora ry re c o gnition from [the ] Secretary [ ] , [the Accrediting Council] review ed the findings by ACCET

. . . [ a n d] issued a directive to show cause why Virginia College ’ s accred itat i on sho u ld not be wi thd rawn by su spension at [the Accrediting
Council ’ s] Au gust 2018 me eting [;] ” and (2) a t that August 2018 meeting, t he Accrediting
Cou ncil “ again extended Vir ginia C o l l ege ’ s show

- cause directiv e, thereby con tinuing [the22 College ’ s] ac cred i ta t ion

. ” Am. Com pl . ¶ 81

. Furt hermore, the plaintif fs make no allegation that ,

“ [o ]n December 4, 2018 , [w hen the Accrediting Council ] with drew accredi tation from Virgini a
Col lege[,] ” the Accrediting Council was not acting upon its own independe nt decis ion. Id. ¶ 84.
T h e s e independent decis ion s by the Accrediting Council “ sever the cau sal nexus needed
to establish sta nding

. ” E llis v . Comm ’ r of Intern al Revenue Serv. , 67 F. Supp. 3d 3 25, 336 (D.D.C. 2014) , aff ’ d , 622 F. A pp ’ x 2 (D

. C. Cir. 2015) . I f t he Acc rediting Counc il had rescinde d Virginia Coll ege ’ s accreditatio n prio r to the Fall 2018 term, the plaintiffs ’ injury , accordi ng to their allegations, would no t h ave o ccurr ed , bec ause the issuance of loans to attend a n
unaccredited school w o uld contrav ene Title IV

. S e e Pls. ’ Opp ’ n at 1 3 (noting that “ stud ents
must attend an eligible ins titution to be eligi ble for Title IV loans ” ) ; A m. Co m pl. ¶ 82 ( alleging
that “ [i]f Virg inia College h ad no t again be en able to claim accredited sta tus, o r eligi bility for
fede ral student aid, [ the plaint iffs] would not have enrolled f or the Fall 2018 term ” )

. Si milarly, if

t he Accrediting Council had d ecide d to wait until after t he plaintiffs completed th eir fieldwork to
withdraw Virginia College ’ s accredi ta ti on, the plaintiffs would ha ve receiv e d thei r c r edit , rend er ing their injury , as alleged, non - existe n t. S ee id

. ¶ 87 ( alleging that “ [b]ut for the closure of Virginia College ’ s Richmond c ampus on Dece mber 18, [2 018 , the plaintiffs] would have be en able to finish their fieldwork, and the refor e receive cr edit for the Fall 2018 term ” )

. Acco rdingly,
the in dependent actions taken by the Accrediting Council sever the requisite causa l link between
the Secret ary ’s April 2018 Order and the plaintiffs ’ alleged injury. 10

10 The Court notes th at “harm caused directly by t he actions of a third party [may still be] fairly tra ceable to the defendan t[,] ” depending upon “the direct ness of th e 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 respon ding. ” F la. Audu bon Soc ’ y v. Bents en , 94 F.3d 6 58, 679 (D. C. Cir. 1 9 96)

. 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 t wo dec isi ons by th e Accrediting Cou ncil t o delay th e rescission of acc redi tation f rom Virg inia Colle g e we re “ pr oduced by determinative
or co ercive eff ect up on the act ion of ” the Department

. Bennett v. Sp ear , 520 U.S. 154, 169 (1997)

. Rather, the (continued . . . )23 I n sum , because t he plaint iffs make no al le gation th at t he Sec retary ’ s April 201 8 Order
im pact ed the Acc rediting Council ’ s decisio n to withdr aw Virginia College ’ s accreditation on
Decembe r 4, 20 1 8 , the Court c oncludes that the plaintiffs have failed to adequately allege that
their injury o f “ addi tional d ebt for a te r m in wh ich they received no acad emic credit[,] ” Am. Compl. ¶ 106, is “ fa irly traceable ” t o the Sec reta ry ’ s A pril 2018 Order , Friends of the E a rth, Inc.

v . Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 16 7, 180 (2000)

. Accordingly, the C ourt finds
that the pla intiffs lack Article III stand ing under their second th eo ry of in jury.
C. The Plaint iffs ’ “ No Credit for Time and Work ” Theory Finally , in the ir Amended Complai nt, the plaintiffs appear to allege t hat they have als o been injur ed by bein g un able to re ceiv e c r edit for the work they c omplete d at Virginia Colleg e during th e Fall 2018 semeste r
. S ee Am. Compl. ¶ 8 8 (alleging that the plainti f fs “ received no
credit for the se veral months of time a nd work they spent in the Virginia College prog ram d uring
the Fall 2018 t erm ” )

. However , as th e def endan t s co rrectly note , see Def s
. ’ Re ply a t 3 , it appe a rs

(. . . co ntinued) plaintiffs onl y allege that the Departm e nt ’ s temp orary ext ension of the Accrediting Coun cil ’ s accredita tion enabled the Accrediting Council to continue oper a t in g and, conse quently, to continue making such decision s
. See generally Am. Comp l. ¶ ¶ 8 1

– 86

. The plaintiffs s i milarly make no allegation that the Secretary ’ s April 2018 Order incent i vized the Accreditin g Council to withdr aw Virginia College ’ s accredit ati on on December 4, 2020, or not to withdraw Virginia College ’ s accreditatio n prior to the Fall 2018 t erm. S e e g e nerally id. Although “ some cases h a ve held that plaintiffs have standi ng to challenge g ove rnme nt action on the basis of injuries cause d by reg u l ated third part ies whe re the reco rd present ed subst antial evidence of a causal relationship betwee n th e g over nm ent policy and the thir d

- pa r ty cond uct, leaving little doubt as to caus ation [,] ” here the att en uated chain pre sented by the plain t iffs does no t p res ent such “ substantial e vidence ” and leav es the Court with more than a “ little doubt as to causa tion [.] ” N at ’ l Wrestling Coaches Ass ’ n v. D ep ’ t of Educ. , 366 F.3d 930 , 941 (D

. C. C ir. 2 004) , abrogat ion on other grounds recognized by Perry C apital LLC v. M nuchin , 864 F.3d 591, 621 (D.C. Cir. 2017)

. T he Court further notes that t he District of Columbia Circu it “ ha s recognized that a ‘ fe deral co urt m ay fi nd th at a party has stand ing to chall e nge government action that pe rmits or authorize s th ird

- party cond uct that would otherwise be il legal in the absence of th e [g]overnme nt ’ s action [,] ’ ” Marou f v. Azar , 391 F. Sup p . 3d 23, 34 (D.D.C

. 2019 ) (quoting Nat ’ l Wresting Coaches Ass ’ n v. Dep ’ t of Edu c. , 366 F.3d 930, 940 (D.C . Cir. 2004) , abrogat ion on other groun ds recognized by Perry C apital LLC v. M nuchin , 864 F.3d 591, 621 (D. C. Cir. 201 7) ) . However, th i s line of autho rity is i napposite here because , in this case, the plaintiffs make no allegation t hat the Accre diting Council ’ s with drawal of Virginia College ’ s a ccre ditation on December 4, 2018, “ would otherwise be illegal ” in the abs ence of t he Sec retar y ’ s April 2018 O r der. Id.24 t hat t he pla intiffs essentially abandon thi s theor y of injur y in their o pposition, instead argui ng
that the ir i njur y comes from their loans , s ee Pls. ’ Opp ’ n at 13 (stat ing that the “ [p]laintiffs hav e adequately pleade d [an ] in j ury [

- ] in[

- ]fact [,] ” whether the ir injury “ is prop erly construed as the
f inancial obligations im posed by their stud ent loans, o r [ as t he loans] i n conjunction w ith th eir
lost credits ” ).
To the exten t t ha t the plaintiffs maintain the th eory that they we re in jure d by

“ [ r] eceiv[ing] no credit for the several mon ths of time and wor k they spent in the Virgi nia College program during the Fall 2018 term[,] ” Am. Compl. ¶ 88 , this th eor y fails for the same

reasons explained above regardin g the p laintiffs ’ theory that th e y ha ve “ d ebt for a term in which they received no academic credit [ , ] ” i d. ¶ 106 ; see supra section III.B

. The plainti ffs ’ failure to
receive credit stems from the decisi on o f the Accredi ting C ouncil t o withdraw Virginia C o llege ’ s

acc reditation o n December 4, 2018 , prior to the plai ntiffs ’ co mp l etion of their coursework.
Ac c ording to the plaintiff s , the y were both sch edule d to comp lete their new fiel dwork placements, whic h was th e “ onl y [ cour sework ] needed to . . . earn the ir degrees [,] ” b y t he end of January at the latest . Pls. ’ O pp ’ n at 19 ( arguing that Kaiser ’ s pla c em e nt “ anticipated that [he]

wo uld work there into January t o fu lfill h is ei ght

- week requ irement ” and tha t “ Passut . . . w as

a lso sch e d uled to complete his fi eldwork in January 2 0 19 ” ). Accor din gly , it is the date on which
th e Accrediting Cou ncil with drew Vir ginia College ’ s accreditation

— r ather than the withdrawal
of accreditation itself or any other reas on

— t hat prevented th e plaint iffs from “ f inish[ing] th eir
field work a nd receiv[ ing] cr edit for t he term by the time the school c lo sed[

. ] ” I d. at 13 . If th e
A c crediting Coun c il had waited to withdraw Virgin ia College ’ s accr edita tion un til the end of
Ja nua ry 2019 , the p lain tiffs w ould have rec ei ved credit f o r the Fall 201 8 term

. See Pls. ’ Opp ’ n
at 20 (arguing tha t the “ [p] laintiffs ’ inability to obtain cr edit for [the] Fall 2018 [ ter m ] stemmed25 entirely f rom the abrupt closure of t heir school ” )

. Si milarly , if the Accreditin g Council had
withd rawn Virgin ia Co llege ’ s accreditation prior to th e Fall 2018 t erm, the pl a intif fs w ould not
have enrolled fo r the Fall 20 18 term and would not have expended any “ time and work [ ,] ” Am. Compl. ¶ 106. See Am. Compl. ¶ 82 (alleging tha t “ [i]f Virginia Colle ge had not again been able
to cla im accredited status, or eligib ilit y fo r fe deral stud ent aid, [the plaintiffs] w ould not h ave
enrolled for the Fall 20 18 term ” ). But th e p laint iffs present no allegation t hat the date of
withdraw al wa s i n any measure impac ted by the Secretary ’ s April 2018 O rder , rather than independent, di sc re tionary deci si on s of the Accrediting Coun cil.
Wit hout such allegations, the C ourt cannot c onclude that the plaintiffs have adequately

a lleged that the ir failure to re ceive credit for their time and work is “ fa irly t raceable ” t o the
Sec reta ry ’ s A pril 2018 Order , Friend s of the E a rth , 528 U.S. at 180

. The refore, i n accordance
with i ts a b ove con clusions, the Court determines that the pl ainti ffs also la ck standing to th e extent that they all ege tha t they “ rec eived no cr edit for the . . . time and wo rk they spent in the
Vi rginia College pr ogram during the Fa l l 2018 term[

. ] ” Am. C ompl. ¶ 8 8.
IV. C ONCLU SI ON For the foregoing reasons, the Cour t con cludes that it must grant in part and deny as moot
i n p ar t the defendant s ’ m otio n to dismis s
. The Court grants the defendants ’ motio n to the exten t
it ass erts that the C ourt lacks jurisdi ctio n over th is case be cause the plaintiffs lack standing to pursue this matter ag ainst the defendants

. The moti on is denied as moot in a ll o ther r espects.
F inally , b ec au se the Court l acks jurisdicti on to resolve the p lain ti ffs ’ pendin g motion for class

cert ific ation, t he Court al so concludes that it m ust dis m i ss as moot the plaintiff s ’ motion for class
certif i cati on.26 SO ORDERED thi s 21st day of Ma y , 20 21

. 11

RE G GIE B. WALTON Unit ed Stat es District Ju dge

11 The Court will cont em po raneo usly issue an Order consistent with this M emorandum Op i nio n.