UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CALIFORNIA ASSOCIATION OF PRIVATE POSTSECONDARY SCHOOLS,

Plaintiff ,
v. ELISABETH DEVOS, in her official capacity as Secretary of the U.S. Department of Education, et al. ,

Defendants, Civil Action No. 17

- 999 (RDM)

MEMORANDUM OPINION AND ORDER This is not the first (and presumably not the last) chapter in a dispute about the fate of regulations that the Department of Education promulgated in November 2016 to address perceived deficiencies in th e William D. Ford Federal Direct Loan Program (“Direct Loan Program”), which allows students who attend participating schools to ob tain federal loans

. T he regulations were intended to “protect student loan borrowers from misleading, deceitful, and predatory practices.” William D. Ford Federal Direct Loan Program (“2016 Rule”) , 81 Fed. Reg. 75,926 (Nov. 1, 2016). Shortly before the 2016 Rule was scheduled to take effect, Plaintiff California Association of Private Postsecondary Schools (“CAPPS”) brought this action seeking
to set t he rule aside in its entirety. Dkt. 1 at 75

– 76. About a week later, CAPPS moved preliminarily to enjoi n the implementation or enforcement of a single provision , which prohibits participants in the D irect L oan P rogram from employing pre dispute arbitration clauses and class action waivers in certain disputes with student

- borrowers (“Arbitration and Class Actio n Waiver Provision ”)

. Dkt. 6. That motion was never fully briefed or decided , however, because the2

Department of Education, on its own accord, stayed the effective date of most of the 2016 Rule pursuant to 5 U.S.C. § 705 pending resolution of this case

. William D. Ford Federal Direct Loan Program (“ Section 705 Stay ”) , 82 Fed. Reg. 27,621 (June 16, 2017 )

. The Department’s Section 705 S tay led to the next chapter of the dispute. Within weeks of issuance of the stay , two student

- borrowers and a coalitio n of nineteen states and t he District of Columbia filed separate law suits seeking to invalidate the stay

. See Bauer v. DeVos , No. 17

-
cv - 1330 (D.D.C. filed July 6, 2017 ); Massachusetts v. Dep’t of Education , No. 17

- cv - 1331 (D.D.C. filed July 6, 2017 ). The Department subsequently issued an interim final rule on October 24, 2017, staying the effective date of the 2016 Rule to July 1, 2018 , and then issued a final rule staying the effective date for another year. See William D. Ford Federal Direct Loan Progra m (“Interim Final Rule”), 82 Fed. Reg. 49,114 (Oct. 24, 2017); William D. Ford Federal Direct Loan Program (“Final Delay Rule”), 83 Fed. Reg. 6,458 (Feb. 14, 2018). With each new rulemaking, the student

- borrower and state plaintiffs amended their complain ts to challenge the new action. The Co urt consolidated the Bauer and Massachus etts cases and, on September 12, 2018, is sued an opinion resolving the consolidated action

. Bauer v. DeVos , No. 17

- cv - 1330 , 2018 WL 4353656 (D.D.C. Sept. 12, 2018) (“ Bauer I ”). In that decision, the Court held t hat the Section 705 Stay was arbitrary and capricious and thus unlawful under the Administrative Procedure Act (“APA”) ; that the Interim Final Rule was, for the most part, moot; and that the Final Delay Rule was issued in violation of the H igher Education Act’s neg otiated rulemaking requirement. Id. Five days later, the Court entered a remedial order vacating the Final Rule and Section 705 Stay but staying vacatur of the Section 705 Stay until October 12, 2018. Bauer v. DeVos , No. 17

- cv - 1 330 , 2018 WL 4483783 (D.D.C. Sept. 17, 2018) (“ Bauer II ”). On October3

12, 2018, the Court extended that stay until noon on October 16 , 2018. Minute Order (Oct. 12, 2018) , Bauer, No. 17

- cv - 1330

. 1 The Bauer I decision, in turn, opened the current chapter of the dispute. Two days after issuing that decision, the Court held a status conference in this action and set a schedule for CAPPS to renew its motion for a preliminary injunction to enjoin the 2016 Rule, which would go into effect upon expiration of the Court ’ s stay
. See Minute Order (Sept. 17, 2018). The Court also granted the Bauer pl aintiffs leave to intervene ( “ Bauer Intervenors ” ) and granted the interested states and the District of Columbia leave to participate as amici ( “ State Amici ” )

. 2 See Minute Entry (Sept 14, 2018); Minute Order (Sept. 18, 2018) . On September 22, 2018, CAPPS filed the pending motion for a preli minary injunction. Dkt. 65. This time, however, CAPPS has sought preliminarily to enjoin four provisions of the 2016 Rule: (1) the Arbitration and Class Action Waiver that it targeted in its original motion; (2) the “Financial Responsibility Provision;” (3) the “Repayment Rate Provision;” and (4) the “Borrower Defense Provision.” Id

. at 17 . The United States and Bauer intervenors filed briefs in opposition, and the states and the District of Columbia filed an amic us brief in opposition. See Dkt. 67 (St ate A mic i ) ; Dkt. 68 ( Bauer I ntervenors) ; Dkt. 69 (United States) . CAPPS filed a reply brief on October 8, 2018, Dkt. 72, and the Court held oral argument the following day, Minute Order (Oct. 9, 2018). Each of the four provisions that CAPPS seeks to enjoin raises a distinct set of i ssue s ; overall , CAPPS raises twenty

- four chal lenge s to the four provisions. As to most of the

1 The Department of Education now notes that it “will not publish by November 1, 2018 a final rule rescinding the 2016 Rule,” but that “the Department remains committed to rescinding the 2016 Rule, for all of the reasons set forth in the 2018 NPRM.” Dkt. 69 at 2

. 2 On September 22, 2018, CAPPS sought r econsideration of the Court’s decision granting the Bauer plaintiffs leave to intervene based on new evidence. Dkt. 64. Th e motion has been fully briefed , Dkt. 71, Dkt. 73 , and is pending.4

challenged provisions, CAPPS has failed to demonstrate that it has standing or that the dispute is ripe for decision. Mo reover, with respect to each of the four provisions, CAPPS has failed to carry its burden of demonstrating that any one of its members is likely to suffer an irreparable injury in the absence of an injunction. Because irreparable injury is the sine qua no n for obtaining a preliminary injunction, that flaw is dispositive. In light of these threshold obstacles , the Court need not reach the merits of the plethora of substantive arguments that CAPPS raises

— and , indeed, concludes that it would not be prudent t o do so on such an abbreviated schedule. Those issues , in short, are for the next chapter. The Court will, accordingly, deny the motion for a preliminary injunction and will set a schedule for cross

- motions for summary judgment. I. BACKGROUND Title IV of the Higher Education Act of 1965 (“HEA”), 20 U.S.C. § 1070 et seq. , empowers the Secretary of Education “to assist in making available the benefits of postsecondary education to eligible students .

. . in institutions of higher education” throu gh various types of financial aid. Id . § 1070(a). The William D. Ford Federal Direct Loan Program (“Direct Loan Program”) allows students who attend “participating institutions of higher education” to obtain direct loans from the federal government to pa y for their educational expenses. Id . § 1087a(a). To participate in the Direct Loan Program , institutions of higher education must enter into contracts, called Program Participation Agreements ( “ PPAs ” ), with the Secretary of Educ ation and agree to comply with the HEA , all applicable regulations , and certain other conditions

. See 20 U.S.C. §§ 1087c(a), 1094(a)(4); 34 C.F.R. §§ 668.14, 685.300(b). These contracts may include any provisions “the Secretary determines are necessary to protect the interests of the United States and to promote the purposes of” the Direct Loan Program. 20 U.S.C.5

§ 1087d(a)(6); see also id . § 1087c. By statute, students who are harmed by a Title IV school’s violation of certain laws, including prohibitions on fraud, may be entit led to relief from their federal Direct Loan obligations through a process known as “borrower defense” to repayment. Id. § 1087e(h) ; see also 34 C.F.R. § 685.206(c). In administering the Direct Loan Program, the Secretary must also “specify in regulations which acts or omissions of an institution of higher education a borrower may assert as a defense to repayment of a loan” made under the Direct Loan Program. 20 U.S.C. § 1087e(h). And m ore generally, the Secretary has authority “to make, promulgate, issue, rescind, and amend rules and regulations governing the” Direct Loan Program. Id . § 1221e

- 3. Pursuant to the se authorities, in January 1994 , the Secretary issued “standards, criteria, and procedures governing the Federal Di rect Student Loan . . . program,” including the first iteration of the B orrower D efense R ule. Federal Direct Student Loan Program, 59 Fed. Reg. 472, 472 (Jan. 4, 1 994). In December 1994, the Secretary amended the Direct Loan Program regulations, including tho se governing borrower defenses, s ee William D. Ford Federal Direct Loan Program, 59 Fed. Reg . 61,664, 61,696 (Dec. 1, 1994), and under those regulations , borrowers we re permitted to assert “as a defense against repayment, any act or omission of the school attended by the [borrower] that would give rise to a cause of action against the school under applicable State law.” 34 C.F.R. § 685.206(c)( 1). The 1994 r egulations (1) permit ted a student borrower to assert her school’ s misconduct as a reason for nonrepayment , and (2) if the borrower wa s successful, permit ted the Department of Education to recoup the loan from the school. Id . § 685.206(c)(2) , (3). The adequa cy of the 1994 B orrower D efense R ule was tested by the collapse of Corinthian Colleges in May 2015. See William D. Ford Federal Direct Loan Program (“June 16,6

2016 Notice of Proposed Rulemaking (‘NPRM’)”), 81 Fed. Reg. 39,330, 39,330 (June 16, 2016). Cor inthian , a for

- profit company that “ operat[ed] numerous postsecondary schools that enrolled over 70,000 students at mo re than 100 campuses nationwide,” i d . at 39,335, filed for bankruptcy in 2015. In the wake of Corinthian’s closure , the Department ultima tely determined “that the college had misrepr esented its job placement rates. ” Id

. In the aftermath, “ thousands of claims for student loan r elief” were filed, and Corinthian’s bankruptcy meant that there was “ no other party from which the Federal government [could] recover any losses

. ” 2016 Rule, 81 Fed. Reg. at 76,022. T he Department concluded , against this backdrop, that the 1994 borrower defense rule was outdated and was no longer adequate to deal with the changed “landscape of higher education.” June 16, 20 16 NPRM, 81 Fed. Reg. at 39,335. To address these perceived deficiencies, the Department commenced a rulemaking , and

o n November 1 , 2016, it published the final rule governing the Direct Loan Program that is at issue in the present action

. 2016 Rule, 81 Fed. Reg. at 75,926

. In relevant part, the 2016 Rule: (1) prohibit s schools “participating in the Direct Loan Program from obtaining” or relying upon a borrower’s “waive[r] [of] his or her right to initiate or participate in a class action lawsuit,” or “from requiring students to engage in internal dispute processes before contacting accrediting or government agen cies” (“Arbitration and Class Action Waiver Provision”); (2) require s “financially risky institutions [to be] prepared to take responsibility for the losses to the government for discharges of and repayments for [f]ederal student loans” (“Financial Respons ibility Provision ” ); (3) adopts certain disclosure obligations for institutions “at which the median borrower has not repaid in full, or made loan payments sufficient to reduce by at the least one dollar the outstanding balance of the borrower’s loans receive d at the institution”7

(“Repayment Rate Provision”); and (4) amend s the standards and procedures applicable to the borrower defense process (“Borrower Defense Provision”). Id . at 75,926

– 27. CAPPS seeks preliminarily to enjoin the implementation of each of these provisions. II. ANALYSIS “A preliminary injunction is an extraordinary rem edy never awarded as of right,” Win ter v. Natural Res. Def. Council , 555 U.S. 7, 24 (2008) , but “ only when the party seeking the relief, by a clear showing, c arries the burden of persuasion, ” Cobell v. Norton , 391 F.3d 251, 258 (D.C. Cir. 2004). To secure a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter , 555 U.S. at 20 . Although the moving party may rely on “evidence that is less complete than in a trial on the merits,” NRDC v. Pena , 147 F.3d 1012, 1023 (D.C. Cir. 1998), he nevertheless “bear[s] the burden of produc[ing]

. . . credible” evidence sufficient to demonstrate his entitlement to injunctive relief, R.I.L

- R v. Johnson , 80 F. Supp. 3d 164, 173 (D.D.C. 2015) (quotation marks omitted) (first alteration in original). Before the Supreme Court’s decision in Winter , cour ts in this circuit applied a “sliding

scale” approach to the preliminary injunction analysis under which “a strong showing on one factor could make up for a weaker showing on another.” Sherley v. Sebelius , 644 F.3d 388, 392 (D.C. Cir. 2011). Since Winter , the D.C. Circuit has hinted on several occasions that “a likelihood of success is an independent, freestanding requirement for a preliminary injunction,” id . at 393 (quoting Davis v. Pension Benefit Guar. Corp. , 571 F.3d 1288, 1296 ( D.C. Cir. 2009)), but it “has n ot yet needed to decide the issue,” League of Women Voters of United States v. Newby , 838 F.3d 1, 7 (D.C. Cir. 2016); see also Am. Meat Inst. v. U.S. Dep ’ t of Agric. , 746 F.3d8

1065, 1074 (D.C. Cir. 2014), reinstated in relevant part by 760 F.3d 18 (D.C. Ci r. 2014) (“ T his circuit has repeatedly declined to take sides .

. . on the question of whether likelihood of success on the merits is a freestanding threshold requirement to issuance of a preliminary injunction

. ”) (en banc) ; Sherley , 644 F.3d at 393 ( reading “ Winter at least to suggest if not to hold ‘that a likelihood of success is an independent, free

- standing requirement for a preliminary injunction ’ ” but declining to decide the issue (quoting Davis , 571 F.3d at 1296) ). Bu t, regardless of whether the sliding scale approach applies, a party seeking a preliminary injunction must clear two, non

- negotiable hurdles. First , a court must

— at each successive stage of the proceeding

— evaluate whether it has jurisdiction to provide th e relief sought, and it must do so through the lens of the standard applicable at that stage of the proceeding

. Lujan v. Defs. of Wildlife , 504 U.S. 555, 561 (1992). As a result, “a party who fails
to show a ‘sub stantial likelihood’ of standing is not en titled to a preliminary injunction.” Food & Water Watch, Inc. v. Vilsack , 808 F.3d 905, 913 (D.C. Cir. 2015) (citation omitted) . That same reasoning, moreover, extends to other jurisdictional prerequisites, such as ripeness. Second , as Winter makes clear, a mere “possibility” of irreparable harm will not suffice. Winter , 555 U.S. at 22. “Rather, a showing that irreparable injury is ‘likely’ is the sine qua non for obtaining a preliminary injunction

— it is what justifies the extraordinary remed y of granting relief before the parties have had the opportunity fully to develop the evidence and fully to present their respective cases.” Achagzai v. Broad. Bd. of Governors , No. 14

- cv - 768, 2016 WL 471274, at *3

– 4 (D.D.C. Feb. 8, 2016) ; see also Chapla incy of Full Gospel Churches v. England , 454 F.3d 290, 297 (D.C. Cir. 2006) (“A movant ’ s failure to show
any irreparable harm is therefore grounds for refusing to issue a preliminary injunction, even if the other three factors entering the calculus merit s uch relief.”); Texas Chi ldren’ s Hosp. v.9

Burwell , 76 F. Supp. 3d 224, 241

– 42 (D.D.C. 2014); Trudeau v. FTC , 384 F. Supp. 2d 281, 296 (D.D.C. 2005) , aff’d , 456 F.3d 178 (D.C. Cir. 2006)

. As a result , if the moving party fails to demonstrate that it is like ly to suffer an irreparable injury, the Court must deny the motion. With these guideposts in mind, the Court will consider whether CAPPS has established that there is a “substantial likelihood” that the Court has Article III jurisdiction to consider its challenge to each of the four provisions at issue and whether it has shown that the a ssociation , or one of its members, is likely to suffer an irreparable injury if the Court does not issue a preliminary injunction. A. Arbitration and Class Action Waiver The first of the provisions that CAPPS seeks to enjoin adds conditions to the Direct Loan Program P articipation A greements

— or “PPAs”

— that participating schools must enter with the Secretary of Education in order to receive Title IV funding

. 2016 Rule, 81 Fed. Reg. at 75,927

. To qualify as a “participating institution,” a school must enter a PPA promising to undertake an array of responsibilities, such as estimating the needs of student

- borrowers, reconciling certain records on a m onthly basis, and implementing a quality assurance system. 34 C.F.R. § 685.300. As relevant here, the 2016 Rule amended this regulation to require that each participating school
must also agree that (1) it “will not seek to rely in any way on a predispute arbitration agreement or on any other predispute agreement with a student who has obtained or benefited from a Direct Loan, with respect to any aspect of a class action that is related to a borrower defense claim;” (2) it “will not enter into a predispute agreement to arbitrate a borrower defense claim, or rely in any way on a predispute arbitration agreement with respect to any aspect of a borrower defense claim;” and (3) if the school has existing contracts with student

- borrowers that include covered pred ispute class action waivers or arbitration agreements, “the school must either ensure [that]10

the agreement[s] [are] amended . . . or provide the student[s] with written notice” that it will not “use” the predispute class action waivers or arbitration agree ments. 2016 Rule, 81 Fed. Reg. at 76,087

– 88 ( 34 C.F.R. § 685.300(e)(1), (e)(3)(ii), (e)(3)(iii)(B), (f)(1), (f)(3)(ii), (f)(3)(iii)(B)). According to CAPPS, these additional conditions “conflict with” the Federal Arbitration Act (“FAA”), 9 U .S.C. § 2; exceed the Secretary’s authority under the HEA , 20 U.S.C. 1087d; were promulgated in violation of the APA , 5 U.S.C. § 702(2) ; and violate the Due Process Clause. See Dkt. 65 at 11

– 20. For present purposes, however, the Court does not reach these questions but, instead, considers whether CAPPS has established standing to bring these claims and, if so, whether it has established that at least one of its members is likely to suffer an irreparable injury if the Court does not issue a preliminary inju nction. The answer to the first question is “yes,” but the answer to the second is “no.” As a result, the C ourt must deny CAPPS ’ s motion for a preliminary injunction with respect to the Arbitration and Clas s Action Waiver Provision. 1. Standing As a first step, the Court must consider whether CAPPS has met its burden o f establishing a “substantial likelihood” that it has standing to challenge the A rbitration and C lass A ction W aiver P rovision

. See Food & W ater Watch, Inc. , 808 F.3d at 913. When an association, like CAPPS, seeks to establish standing, it may pr oceed in one of two ways: it may show that the association has “organizational standing” to sue on its own behalf , or it may demonstrate that it has “associational standing” to sue on behalf of its members. See Public Citizen, Inc. v. Trump , 2 9 7 F. Supp. 3d 6, 17 (D.D.C. 2018). Here, CAPPS relies only on the latter theory.11

Associational standing is premised on the theory that the plaintiff is not seeking a remedy on its own behalf but, rather, is proceeding “as the representative of its members.” Warth v. Seldin , 422 U.S. 490, 511 (1975). As such, the plaintiff need not establish that it has standing to sue in it s own right, but must show that (1) at least one of “its members would otherwise have standing to sue in [her] own right,” (2) the interests that the association “seeks to protect” in the litigation “are germane to the organization’s purpose,” and (3) “nei ther the claim asserted nor the relief request ed requires the participation of individual members in the lawsuit.” Hunt v. Wash

. S tate Apple Advert. Comm’ n , 432 U.S. 333, 343 ( 1977). Viewed through the lens of the pending motion, the Court has littl e difficulty in concluding that CAPPS is “likely” to satisfy the second and third prongs of the Hunt test. According to the CAPPS ’ s executive director, Robert Johnson, CAPPS provides its member schools with advice regarding compliance with regulator y mandates and assists “in the drafting of enrollment agreements and arbitration provisions.” Dkt. 65

- 2 at 1 (Johnson Decl. ¶ 1). And t his is not a case

— like a damages action, for example

— that requires the participation of individual members. T he first prong

— the requirement that at least one member have standing to sue

—however, requires more detailed analysis. The standing inquiry begins with the oft

- quoted test articulated in Lujan v. Defenders of Wildlife : [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 and 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

504 U.S. 555, 560 (1992) (alterations in original) (internal citations omitted) . Because standing must be evaluated on a claim

- by

- claim basis, Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc. , 528 U.S. 167, 185 (2000) , and because standing must be assessed in light of the standard applicable at the relevant stage of the pro ceeding, Lujan , 504 U.S. at 561 , this means that CAPPS must establish a “substantial likelihood” that at least one of its member s (1) will suffer an “actual and imminent” injury, (2) that is “fairly traceable” to each of the challenged provisions , and (3) that “the injury will be redressed by a favorable decision.” As explained below, the Court concludes that CAPPS has met this burden with respect to its challenge to the A rbitration and C lass A ction W aiver P rovis ion

. Six of the seven declarations CAPPS off ers in support of its motion at least briefly touch on the question of arbitration. In the most extensive discussion, Johnson attests that “virtually all CAPPS schools utilize arbitration agreements with their students,” and he identifies two such member schools

— Colleen O’Hara’s Beauty Academy and Pima Medical Institute

— by name. Dkt. 65

- 2 at 2 (Johnson Decl. ¶ 9). Johnson adds that the Arbitration and Class Action Waiver Provision will require these schools “to send notices to their students” regarding t he rule change, “to amend their agre eme nts[,] retrain their admissions staffs[,] and actually litigate new cases, including class actions , in federal and state court.” Id. at 3 (Johnson Decl. ¶¶ 10

– 12). Declarants from five member scho ols confirm that member schools “use[] arbitration provisions in [their] enrollment agreements.” Dkt. 65

- 4 at 1 (Ca s anover Decl. ¶ 5); Dkt. 65

- 5 at 1 (Gourji Decl. ¶ 5); Dkt. 65

- 6 at 1 (Wood Decl. ¶ 5); Dkt. 65

- 7 at 1 (Second Casanover Decl. ¶ 5) ; Dkt. 65

- 8 at 1 (Weerasur iya Decl. ¶ 5) . Those declarants, moreover, attest to the efficiency and reduced expense of resolving disputes through arbitration. Dkt. 65

- 4 at 1

- 2 (Ca s anover Decl. ¶¶ 6, 8

– 10 ); Dkt. 65

- 5 at 1

- 2 (Gourji Decl. ¶¶ 6, 8

– 10 ); Dkt. 65

- 6 at 2 (Wood Decl. ¶¶ 6 , 8

– 10) ; Dkt. 65

- 7 at13

1

– 2 (Second Casanover Decl. ¶¶ 6, 8

– 10 ) ; Dkt. 65

- 8 at 2 (Weerasuriya Decl. ¶ 6

– 9 )

. Finally, three member schools assert : “We currently have disputes in arbitration and are not certain how we could proceed with those disputes if the [ 2016 Rule] goes into effect.” Dkt. 65

- 4 at 2 (Casanover Decl. ¶ 11); Dkt. 65

- 7 at 2 (Second Casanover Decl. ¶ 11) ; Dkt. 65

- 8 at 2 (Weerasuriya Decl. ¶ 10)

. The Court concludes that this showing is sufficient to establish that at least one CAPPS member sch ool has standing to challenge the Arbitration and Class Action Waiver Provision. CAPPS has identified specific member schools that will likely suffer a concrete injury if the challenged provision takes effect, and it is likely that the relief sought from th e Court

— including a preliminary injunction

— would redress that injury. To take the most obvious example, the declarations establish that, if the Arbitration and Class Action Waiver Provision takes effect, each of the identified schools would be required promptly to send a notice to students with existing enrollment agreements informing them that the school will “not . . . use any predispute arbitration agreement to stop [the student] from bringing a lawsuit concerning” the covered conduct, 2016 Rule, 81 Fed. Reg. at 76,088 ( new § 685.300(f)(3)(iii)(B)). Because “ s tanding does not depend on the size o r quantum of harm to the party,” Animal Welfare Inst. v. Kreps , 561 F.2d 1002, 1008 (D.C. Cir. 1977), that imminent cost is sufficient to sustain CAPPS’s standing. 2

. Irreparable Injury A prospective injury that is sufficient to establish standing, however, does not necessarily satisfy the more demanding burden of demonstrating irreparable injury. The D.C. Circuit “has set a high st andard for irreparable injury.” Chaplaincy of Full Gospel Churches , 454 F.3d at 297 . The injury must be unrecoverable ; it must be “both certain and great; [and] it must be actual and not theoretical.” Wis

. Gas Co. v. F ed. Energy Regulatory Comm’n , 758 F.2d 669, 67414

(D.C. Cir. 1985). To be sure, economic loss sustained due to a federal administrative action is typically “ uncompensable ” in the sense that federal agencies enjoy sovereign immunity, and the waiver of sovereign immunity in the APA does not reach damage s claim s, 5 U.S.C. § 702 (permitting actions “seeking relief other than money damages”). But it proves too much to suggest that “ irreparable ” injury exists, as a matter of course, whenever a regulated party seeks preliminarily to enjoin the implementation of a new regulatory burden. See Air Transport Ass’n of Am., Inc. v. Export

- Import Bank , 840 F. Supp. 2d 327, 335

– 36 (D.D.C. 2012). Rather, an asserted “economic harm” must “be significant, even where it is irretrievable because a defendant has sovereign immunity .” Id. at 335. In other words, the loss “must . . . be serious in terms of its effect on the plaintiff.” Gulf Oil Corp. v. Dep’t of Energy , 514 F. Supp. 1019, 1026 (D.D.C. 1981). This conclusion is consistent with an array of decisions from this Court h olding that irreparable injury requires damage to a business “above and beyond a simple diminution in profits,” Mylan Pharm

. , Inc. v. Shalala , 81 F. Supp. 2d 30, 43 (D.D.C. 2000), and that, even where the United States is the defendant, “a plaintiff must establish that the economic harm is so severe as to ‘cause extreme hardship to the business , ” ’ Coal

. for Common Sense in Gov’t Procurement v. United S tates , 576 F. Supp. 2d 162, 168 (D.D.C. 2008) (quoting Gulf Oil Corp. , 514 F. Supp. at 1025 )

. The standard also requires more than conclusory assertions of potential loss. To permit the Court to evaluate the nature and extent of the alleged irreparable i njury, the movant bears the burden of presenting “ specific details regarding the extent to which [its] business will suffer .” Nat’l Ass’n of Mort g. Brokers v. Bd. of Governors of the Fed. Res. Syst ., 773 F. Supp. 2d 151, 181 (D.D.C. 2011).15

The declarations offered in support of CAPPS’s motion do not satisfy this “high standard.” Chaplaincy of Full Gospel Churches , 454 F.3d at 297

. Although they show that specific member schools use arbitration agreements and that they will incur some presumably imminent c ost in providing the required notices to existing student

- borrowers, they say nothing about the extent of that cost. 3 Likewise, although the Court understand s that, if the Arbitration and Class Action Waiver Provision takes effect, those schools will need to amend their enrollment agreements, the declarations

— once again

— provide no meaningful information about the extent of that cost. Rather, each simply recites the same boilerplate conclusion that implementing the required “changes will be enormously burd ensome and disruptive to [the school’s] educational mission.” Dkt. 65

- 4 at 2 (Ca s anover Decl. ¶ 14); Dkt. 65

- 5 at 2 (Gourji Decl. ¶ 13 ); Dkt. 65

- 6 at 2 (Wood Decl. ¶ 13); Dkt. 65

- 7 at 2 (S econd Casanover Decl. ¶ 14 ); Dkt. 6 5

- 8 at 2 (Weerasuriya Decl. ¶ 13 ); see also Dkt. 65

- 2 at 3 (Johnson Decl. ¶ 12) (referring to “enormous cost”). It is well

- established that such “‘broad conclusory statements’ about the likelihood of harm” will not suffice. Guttenberg v. Emery , 26 F. Supp. 3d 88, 102 (D.D.C. 2014) (quo ting Cornish v. Dudas , 540 F. Supp. 2d 61, 65 (D.D.C. 2008) )

. In short, “[b]are allegations of what is likely to occur are of no value ;” the movant must, instead, “ substantiate the claim that irreparable injury is ‘likely’ to occur.” Wis

. Gas Co ., 758 F .2d at 674 (emphasis added)

.

3 Defendants respond to CAPPS’ s allegations of harm with respect to this provision by pointing out that a school could elect to forego Title IV funding and continue employing predispute arbitration agreements and class action waiver provisions. Dkt. 68 at 28; Dkt. 69 at 11

– 12. CAPPS, in turn, argues that this only serve s to “severel y exacerbate[] the prospect of irreparable injury.” Dkt. 65 at 22. CAPPS has not suggested , however, that any one of its member schools is likely to make this choice with respect to t he Arbitration and Class Action Waiver Provision or any other provision they have sought to preliminarily enjoin

. The Court, accordingly, does not consider whether the loss of Title IV funding would constitute irreparable harm.16

Each of the five declarations from CAPPS member schools also refers to the “harm[]” they will suffer due to “the absence of arbitration and class action provisions in [their] enrollment agreements.” Dkt. 65

- 4 at 2 (Ca s anover Decl. ¶ 9 ); D kt. 65

- 5 at 2 (Gourji Decl. ¶ 9 ); Dkt. 65

- 6 at 2 (Wood Decl. ¶ 9 ); Dkt. 65

- 7 at 2 (Second Casanover Decl. ¶ 9) ; Dkt. 65

- 8 at 1 (Weerasuriya Decl. ¶ 8) . But, even putting aside the question whether requiring parties to litigate in court, as opposed to before a n arbitrable tribunal, constitutes irreparable harm, none of the declarations say s anything about when, if at all, such injury is likely to occur. Specifically, t hey say nothing about how often they are confronted by covered legal claims brought by their

s tudents, about the nature of those claims, or about actual expense of litigating those cases, if any. Such “theoretical” or “[un]certain” losses, once again, will not suffice. Wis

. Gas Co ., 758 F.2d at 674

. As noted above, three declarations do assert , in identical language : “We currently have disputes in arbitration and are not certain how we could proceed with those disputes if the [2016 Rule] goes into effect.” Dkt. 65

- 4 at 2 (Casanover Decl. ¶ 11); Dkt. 65

- 7 at 2 (Second Casanover Decl. ¶ 11) ; Dkt. 65

- 8 at 1 (Weerasuriya Decl. ¶ 10) . Notably, h owever, the se declarations stop short of saying that the arbitrations would be affected by the rule; they merely assert that they are uncertain about how they could proceed. By definition, uncertainty falls short of the type of actual and imm inent threat needed to show irreparable injury. Wis

. Gas Co ., 758 F.2d at 674. One source of uncertainty, of course, is that nothing in the 2016 Rule prevents the parties to an existing dispute from agreeing to arbitrate, and, to the extent any pending case is on the eve of arbitration , it is not difficult to imagine that all parties might have an interest moving forward as planned . The Court, of course, can only speculate about what might happen because the se three declarations devote only single, qual ified sentence to matters “currently . . . in arbitration.” Dkt.17

65

- 4 at 2 (Casanover Decl. ¶ 11); Dkt. 65

- 7 at 2 (Second Casanover Decl. ¶ 11); Dkt. 65

- 8 at 1 (Weerasuriya Decl. ¶ 10). Because those declarations say nothing about the number of arbitrati ons, the nature of the disputes, whether the disputes clearly fall within the scope of the 2016 Rule (or whether the declarants are merely “[un]certain” about that question , Wis

. Gas Co ., 758 F.2d at 674 ), whether the opposing parties would agree to conti nue the arbitrations, the cost of litigating the disputes, or even about the stage of the proceedings, the y fail to advance the ball in any meaningful way. 4 A t oral argument, CAPPS offered a further theory of irreparable injury

— the CAPPS schoo ls will sustain “reputational injury” stemming from the need to “zigzag” in their dealings with students. Dkt. 75 at 21

. Today, member schools employ arbitration clauses and class action waivers ; if the 2016 Rule takes effect, they will need to notify their students that they will not use these agreements; and, if the 2016 Rule is set aside, they will want to shift back to using arbitration clauses and class action waivers. To be sure, “[i]njury to reputation can, at least at times, rise to the level necessary to support the issuance of an injunction.” Atlas Air, Inc. v. Int’l B hd. of Teamsters , 280 F. Supp. 3d 59, 103 (D.D.C. 2017 ). This, however, is not such a time. To start, the declaration s from the individual schools that CAPPS submitted in support of it s

4 The declarations of all five member schools also make the qualified claim that, if they “cannot include arbitration provisions in [their] enrollment agreements, the agreements will be difficult if not impossible to amend at a future date” to reincorporate predispute arbitration agreements and class action waivers. Dkt. 65

- 4 at 2 (Ca s anover Decl. ¶ 12); Dkt. 65

- 5 at 2 (Gourji Decl. ¶ 12 ); Dk t. 65

- 6 at 2 (Wood Decl. ¶ 12); Dkt. 65

- 7 at 2 (S econd Casanover Decl. ¶ 12); Dkt. 65

- 8 at 1 (Weerasuriya Decl. ¶ 11) . Again, the qualification bears consideration. The declarations notably stop short of asserting that it would, in fact, be impossible to amend the agreements at a future date, presumably because they want to keep that option open. “Difficult ” is very different from “impossible,” yet the declaration s offer no insight into what might be required. They do not indicate, for exampl e, whether it would be permissible for the schools to include fallback language in their enrollment agreements that would become operative when, and if, the Arbitration and Class Action Waiver Provision is set aside.18

motion make no mention of reputational harm. Moreover, the schools have a ready answer to
any c riticism they may face based on changes to their contracts; the changes are not a matter of whim, but rather, they are compelled by federal law. A preliminary injunction requires f ar more than the indefinite prospect that some students might mistakenly blame one or more CAPPS schools for the “zigzag” required by implementation of the 2016 Rule. Finally, CAPPS argues that the arbitration and class action waiver provision “violates the Due Process Clause through its retroactive a pplication to current contracts ” and that a constitutional violation is per se irreparable. Dkt. 65 at 36. CAPPS is, of course, correct that

“ suits for declaratory a nd injunctive relief against the threatened invasion of a constitutional right do not ordinarily require proof of any injury other than the threatened constitutional deprivation itself. ” Davis v. District of Columbia , 158 F.3d 1342, 1346 (D.C. Cir. 1998). But, even assuming that this principle extends to constitutional claims of the type at issue here, the mere assertion of a constitutional violation is not sufficient to establish irreparable in jury. Because the alleged irreparable injury is the constitu tional violation itself, the Court must consider whether the movant has established that it “is likely to suffer [that] harm ”

— that is, the constitutional injury

— “ in the absence of preliminary relief.” Winter , 555 U.S. at 20. CAPPS does not come close to cl earing that hurdle. It devotes just two sentences to its due process argument, Dkt. 65 at 33, and for good reason : To prevail on a due process challenge to retroactive application of an economic law, the movant must show that the government action bears no rational and legitimate relationship to the interest the government seeks to support. See E. Enters. v. Apfel , 524 U.S. 498, 549 (1998) (Kennedy, J., concurring). Indeed, in the words of the only majority opinion CAPPS cites, “ [i] t is b y now well sett led that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of19

constitutionality, and that burden is on one complaining of a due process violation to establish that the [government] has acted in an arb itrary and irrational way.” Pension Benefit Guar. Corp. v. R.A. Gray & Co ., 467 U.S. 717, 729 (1984). CAPPS offers no basis to conclude that the Department has crossed that deferential constitutional line by imposing a new condition on schools that participate in the Direct Loan Program , even though that condition extends to existing contracts. The Court, accordingly, concludes that CAPPS has failed to carry its burden of demonstrating that it, or one of it s members, is likely to incur some irreparable injury if the A rbi tration and C lass A ction W aiver P rovision is not preliminarily enjo ined. B. Financial Responsibility Provision CAPPS also asks that the Court preliminarily enjoin the F inancial R esponsibility P rovision of the 20 1 6 Rule. That provision amends the stand ards that the Department uses to determine whether a participating school is “financially responsible.” See 20 U.S.C. § 1094(c)(1). The Secretary make s this determination by considering whether an institution is able (1) to provide the services described in its official publications and statements; (2) to provide necessary administrative resources; and (3) to meet all of its financial obligat ions. 20 U.S.C. § 1099c(c)(1). Pursuant to this authority, the Secretary has promulgated “financial ratios”

re gulations, which assign a school a “composite score” based on a calculation of various indicators of an institution’s financial viability. See 34 C.F.R. § 668.172. Under the composite score methodology, a school that achieves a score of 1.5 o r greater may continue to participate in the Title IV programs without providing financial protection to the Department, while an institution with a score of less than 1.0 is deemed “not financially responsible” and must provide financial protection in ord er to participate. See 2016 Rule, 81 Fed. Reg. at 75,983. Those20

schools that are between 1.0 and 1.5 may continue to participate, but are “ subject to increased reporting and monitoring. ” Id

. In response to concerns about identifying financial problems at participating schools at an early enough stage to ensure financial protection for the Department and taxpayers, see June 16, 2016 NPR M, 81 Fed. Reg. at 39,361, the 2016 Rule adds various events that c an, either directly or indirectly, “trigger a requirement that a school provide financial protection, such as a letter of credit, to insure against future borrower defense claims and other liabilities to the Department , ” 2016 Rule, 81 Fed. Reg. at 75,927

. First, there are a small number of triggers that automatically require a school to obtain a letter of credit without regard for any recalculation of its comp osite score. The “automatic” triggers apply if (1) the school “did not derive at least 10 percent of its revenue from sources other than T itle IV, HEA program funds” in the most recent fiscal year; (2) a publicly traded school fails to file required repor ts with the Securities and Exchange Commission (“SEC”), is warned that it “may be suspended from trading” by the SEC or has been delisted by the exchange on which it trades, or “is not in compliance with exchange requirements;” or (3) the school has a “coh ort default rate,” which measures the extent to which students default on their loans, of greater than thirty percent. 2016 Rule, 81 Fed. Reg. 76,074

. The Department has emphasized that these triggers automatically require financial protection because th ey so clearly indicate that an institution is financially at risk. For example, “[a] n institution that fails the requirement to derive at least 10 percent of its revenues from non

- [T] itle IV sources is so dependent on [T] itle IV, HEA funds as to make the loss of tho se fu nds almost certainly fatal . . . [ . ] That risk requires financial protection regardless of the most recent composite score achieved by the institution.” Id . at 75,984.21

Second, there are a number of events that require the Department to recalculate an i nstitution’s composite score. Id . at 76,073

. These triggers include (1) a requirement to pay any debt or “liability ar ising from a final judgment in a judicial” or administrative proceeding or settlement; (2) a suit brought “by a Federal or State authority for financial relief on a claim related to the making of the Direct Loan for enrollment at the school or the provisio n of educational services,” but only if “the suit has been pending for 120 days;” (3) a suit that has made it past a motion for summary judgment ( or the deadline for moving for summary judgment ) or that is scheduled for a pretrial conference or trial; (4) a circumstance in which the school “was required to submit a teach

- out plan . . . that covers the closing of the [school] or any of its branches or additional locations;” (5) a Department calculation shows that the school’s “gainful employment programs . . . could become ineligible . . . for the next award year ” based on calculations of graduates’ debt

- to

- earnings rates; or (6) “any withdrawal of owner’s equity . . . by any means ” if the school operates for profit and its composite score is less than 1.5. 5 Id

. If the recalculated “composite score” is less than 1.0, the school must provide a letter of credit or other financial protection. Id

. CAPPS challenges this provision on various ground s , arguing that it exceed s the Secretary’s authority under the HEA , 20 U.S.C. 1087d; violates the APA, 5 U.S.C. 702(2); and violate s the Due Process Clause

. Dkt. 65 at 25

– 28

. The Court concludes that CAPPS has failed to establish standing or irreparable injury and, thus, does not reach the merits of CAPPS ’ s arguments.

5 The 2016 Rule also rec ognize s certain “discretionary” triggers , which require a school to provide letters of credit when the “Secretary demonstrates that there is an event or condition that is reasonably likely to have a material adverse effect on the financial condition, business, or results of operations of the institution.” Id. at 76,074 (providing a non

- exhaustive list of examples, such as failure of a financial stress test and high annual dropout rates).22

1. Standing Although “there is ordinarily little question” that a pl aintiff who “is himself an object” of a regulatory action has sustained some “injury” and thus has standing to sue, Lujan , 504 U.S. at 56 1

– 6 2 , the questio n present ed here is not so easy. The problem that CAPPS faces is that, “[w]hen a petitioner claims associational standing, it is not enough to aver that unidentified members have been injured.” Chamber of Commerce v. EPA , 642 F.3d 192, 199 (D.C. Cir. 2011). Rather, “an organization brin g ing a claim based on associational standing must show that at least one specifically

- identified member has suffered [or will suffer] an injury

- in

- fact.” Am. Chemistry Council v. Dep’t of Transp ., 468 F.3d 810, 820 (D.C. Cir. 2006). Here, however, not

on e of the declarations that CAPPS submitted from its member schools makes any mention of the F inancial R esponsibility P rovision. Dkt. 65

- 4 (Ca s anover Decl.); Dkt. 65

- 5 (Gourji Decl. ); Dkt. 65

- 6 (Wood Decl.); Dkt. 65

- 7 (S econd Casanover Decl.); Dkt. 65

- 8 (W eerasuriya Decl.)

. No identified member even hints that it might be subject to one or more of the triggers that CAPPS seeks to challenge, and not one has indicated that it has incurred any compliance cost related to those triggers. Cf. State Nat’l Bank o f Big Spring v. Lew , 795 F.3d 48, 53 (D.C. Cir. 2015) (regulated party alleged that it incurred costs in monitoring the program). In short, there is not even a passing reference to any present or future injury that any identified CAPPS member has or will sustain due to the F inancial R esponsibility P rovision. The only relevant evidence that CAPPS has offered appears in the Johnson and Gunderson declaration s . Both declarations assert that CAPPS member schools will be subject to the triggers, but they do so wi thout reference to a single member school. Absent the identification of a member likely to suffer an injury, th ese declaration s fail to satisfy an essential requirement for establishing associational standing. That omission, moreover, is not simply a23

technical error. Without any evidence about how an identified member school is likely to be affected by the provision, the Court cannot determine whether the risk is minimal or substantial, whether the prospective loss is minor or great, or whether the school may have an alternative remedy, such as an APA action. CAPPS may well be ab le to cure this deficiency but, on the present record, the Court is left to conclude that CAPPS has failed “ to show a subs tantial likelihood of standing ” and, thus, “ is not entitled to a preliminary injunction.” Food & Water Watch, Inc. , 808 F .3d at 913 (internal citation omitted)

. The Court need not , however, premise it s decision on this ground alone because CAPPS has also failed to carry its burden of showing that a specific member

— or, indeed, any member

— is likely to sustain an irreparable injury if the financial responsibility provision is not preliminarily enjoined. 2. Irr eparable Injury The Cour t’s conclusions with respect to injury

- in

- fac t exten d with even greater force to the question of irreparable injury. As explained above, not one of the declarations offered by a CAPPS member school so much as mentions the F inancial R esponsibility P rovisi on. The Johnson and Gunderson declaration s do address the provision, but they fail to show that any member will suffer any harm that is “certain and great,” “actual and not theoretical,” and “beyond remediation.” Chaplaincy of Full Gospel Churches , 454 F.3d a t 297 (citations and quotation marks omitted). Johnson and Gunderson each attest that, if the rule takes effect,

“ CAPPS members w[ill] be subject to [the] triggers;” that some CAPPS members are currently defending lawsuits , and others “have been required to submit teach

- out plans;” that CAPPS schools “ have gainful employment programs that could become ineligible for Title IV;” that the triggers “would cause CAPPS members to post letters of credit;” and that “[o]btaining letters of24

credit or other financia l protection” would require schools to incur “substantial fees and expenses,” Dkt. 65

- 2 at 5 (Johnson Decl. ¶¶ 20

– 2 5 ) ; Dkt. 65

- 3 at 3

– 4 (Gunderson Decl. ¶¶ 11

– 16 ). Johnson notes that these consequences would pose a particular hurdle for the “smaller institutions” that make up most of CAPPS’s membership. Dkt. 65

- 2 at 5 (Johnson Decl. ¶ 26). As to much of this, Johnson and Gunderson do not say when it is likely to occur. Each merely says, in conclusory terms and without explanation, that CAPPS memb ers will be required to post letters of credit, but they do not indicate whether that is likely to happen in the next weeks or months or at some time years from now. Moreover, neither declaration provide s any basis to conclude that any CAPPS school is likel y t o face a trigger that would automatically require a member school to obtain a letter of credit ; they do not say, for example, that a CAPPS member has a cohort default rate in excess of thirty percent or is likely to be delisted from the exchange on which it trades. Even with respe ct to those triggers that simply require that the Department recalculate the school’s “composite score,” moreover, the Johnson and Gunderson declaration s fail to establish any imminent threat of irreparable harm. Johnson says, for example, that “[m]any CA PPS schools are listed as defendants in lawsuits,” Dkt. 65

- 2 at 5 (Gunderson Decl. ¶ 21), but he does not indicate whether those lawsuits have pending motions for summary judgment or whether the size of the claim for monetary relief in any of those cases is l ikely to push an otherwise acceptable “composite score” into the range requiring the posting of a letter of credit

. 2016 Rule, 81 Fed. Reg. at 76,073

. See also Dkt. 65

- 3 at 3 (Gunderson Decl. ¶ 12) (making similarly general assertions). Similarly, although Johnson asserts that CAPPS schools “have been required to submit teach

- out plans” in the past, Dkt. 6 5

- 2 at 5 (Johnson Decl. ¶ 22), he does not say that any such demand is “likely” in the near future or that, even if it was, that the

re - calculation of that school’s “composite score” would require the posting of a letter of credit.25

See also Dkt. 65

- 3 at 3 (Gunderson Decl. ¶ 13 ) (same). And, finally, he asserts that CAPPS “schools have gainful employment programs that could become ineligible for Title IV,” Dkt. 65

- 2 at 5 (Johnson Decl. ¶ 23) (emphasis added) ; s ee also Dkt. 65

- 3 at 3 (Gunderson Decl. ¶ 14) (same) , but that assertion is

— on its face

— too speculative to support preliminary relief. See Wis

. Gas Co ., 758 F.2d at 674

. CAPPS has failed to demonstrate, moreover, that its members would be without a remedy if subject to an unlawful or arbitrary and capricious direction to post a letter of credit. At oral argument, CAPPS did not dispute that the APA , 5 U.S.C. § 706(2), would provide a cause of action, but argued that “the mere recalculation of the composite score requires notifying state agencies with possibly profound consequences” and added that “there [is] no guarantee the sta te agencies will [be willing to] wait until the outcome of” the APA action before taking adverse action against a school with an unacceptable comp osite score. Dkt. 75 at 36. That concern

— without evidence that a ny CAPPS member will likely receive an unacceptable “composite score” due to the operation of the 2016 Rule and that a state agency will likely take adverse action before the school can ob tain relief under the APA

— is far too speculative to support a finding that any CAPPS member is “likely” to sustain an irreparable loss if the financial responsibility provision is not preliminarily enjoined. Chaplaincy of Full Gospel Churches , 454 F.3d at 297

– 98 (“speculative” injury insufficient to support preliminary injunction). Finally, CAPPS argues that the automatic triggers violate the rights of its members to procedural due process, Dkt. 65 at 41, and that any related injury is, accordingly, “per se irreparable,” id

. at 43. On the present record, however, it is far from clear that an aggrieved school would lack any opportunity to contest or to refute the Department’s conclusions. S ee , e.g ., 2016 Rule, 81 Fed. Reg. at 76,074 (discussing challenges relating to the cohort default rate);26

id . at 76,006 (“an institution may show (1) that a reportable event no longer exists, has been resolved, or tha t it has insurance that will cover debts and liabilities that arise at any time fro m th at triggering event; or (2) that the amount claimed in a lawsuit . . . exceeds the potential recovery the claimant may receive”). In deed , CAPPS merely asserts that “the ability to contest a trigger exists on very narrow grounds” and “only for som e, not all, of the triggers.” Dkt. 72 at 25. That may be true, but the Court cannot discern whether any CAPPS member faces an imminent threat that it will be forced to post a letter of credit based on some set of facts that might escape revi ew under the F inancial R esponsibility P rovision. And, even if CAPPS had shown that at least one of its members might be required to obtain a letter of credit without an opportunity to contest the Secretary ’ s decision, it has not shown that its members have the type of interest in participating in the T itle IV program that even implicates the D ue P rocess C lause. See Ass’n of Accredited Cosmetology Sch s. v. Alexander , 979 F.2d 859, 867 (D.C. Cir. 1992) ( noting that a “Program Participation Agreement confers upon member schools no legally protectible interest in . . . continued eligibility” for a Title IV program )

. Absent any such evidence, or argument, the Court cannot conclude th at CAPPS has demonstrated that it, or any of its members, is likely to suffer an imminent constitutional injury. The Court, accordingly, concludes that CAPPS has failed to carry its burden of showing th at it, or one of its members, is entitl ed preliminarily to enjoin the F inanci al R esponsibility P rovision

. C. Repayment Rate Provision Next, CAPPS seeks preliminarily to enjoin the R epayment R ate P rovision. Under that provision, “ the Secretary calculates a proprietary [school’s] loan repayment rate[] for the cohort of borrow ers who entered repayment on their [ T itle IV loans] at any time during the two

- year27

cohort period.” 2016 Rule, 81 Fed. Reg at 76,070 . If that calculation shows “that the median borrower has not either fully repaid

. . . or made loan payments sufficient to reduce by at least one dollar the outstanding balance of each of the borrower’s [ T itle IV loans] received for enrollment [at] the [school], the [school] must, i n all of its promotional materials that are made available to prospective or enrolled students, . . . include a loan repayment warning in a form, place, and manner prescribed by the Secretary in a notice published in the Federal Register.” Id

. at 76,071

. Unless otherwise specified in the forthcoming regulation, the warning language must provide: “U.S. Department of Education Warning: A majority of recent student loan borrowers at this school are not paying down their loans.” Id. To date, the Department has yet to promulgate a rule specifying the form, place and manner for the required notice. Dkt. 69 at 15 (noting that “the Department has not yet published any notice that specifies the form, place, and manner that would be requir ed for such warnings”). CAPPS raises a host of challenges to this provision, both statutory and constitutional. It argues that the Secretary lacked statutory authority to adopt the rule; that it was adopted in violation of the APA; and that it will violate the First Amendment rights of those schools required to provide the mandated warning. See Dkt. 65 at 31

– 35. Once again, however, the Court declines to reach the merits because CAPPS has failed to establish that it has standing or that it or any member faces an im minent threat of irreparable injury. 1. Standing As with the F inancial Responsibility P rovision, in order to establish associational standing to challenge the R epayment R ate Provision , CAPPS must show that “ at least one specifically

- identified member has suffered [or will suffer] an injury

- in

- fact.” Am. Chemistry Council , 46 8 F.3d at 820

. At the preliminary injunction stage, this means that CAPPS bears the28

burden of establishing “ a ‘substantial likelihood’ ” that it will be able to prove that an identifi ed member will suffer an injury as a result of the Repayment Rate Provision

. Food & Water Watch, Inc ., 808 F.3d at 913. It has failed to do so. CAPPS submitted seven declarations in support of its motion, yet only one

— the Johnson declaration

— even mentio ns the R epayment D isclosure P ule, and that declaration fails to meet CAPPS ’ s burden . It merely asserts (1) that the 2016 Rule requires for

- profit, participating schools, “in certain circumstances[,] to include in all promotional materials a loan repayment rate warning,” and (2) that “[a]ny visitor of a school’s website or reader of its promotional materials will unjustifiably view the institution[] as being financially unstable and ill

- equipped to prepare [its] students to succeed financially upon graduatio n.” Dkt. 65

- 2 at 6 (Johnson Decl. ¶¶ 29

– 30). The declaration does not identify a single member school with a repayment rate that is sufficiently low that the school faces a concrete threat that it will be required to provide the mandated notice. And, in deed, the declaration does not even posit that some unidentified member school faces such a threat. Because CAPPS has failed to offer any evidence that any specific member school is likely to be subject to the challenged provision, it has failed to carry its burden of establishing a substantia l likelihood that it has standing to challenge the Repayment Rate Provision. 2

. Irreparable Injury CAPPS’s claim to irreparable injury is on even weaker ground. To start, absent evidence that a ny specific CAPPS member is likely to find itself subject to the new rule, CAPPS cannot establish irreparable injury. At oral argument, moreover, the Department removed any doubt regarding the risk that a CAPPS member school is likely to be harmed if the Court does not preliminarily enjoin the R epayment R ate P rovision. As noted above, the 2016 Rule expressly29

contemplates that the Department will publish a notice in the Federal Register regarding the form, place , and manner of the required notice. See 2016 Rule, 81 Fed. Reg. at 76,071 (noting that the warning will be “in a form, place, and manner prescribed by the Secretary in a notice published in the Federal Register) . At oral argument, the Court asked whether the Department would enforce the R epayment R ate D isclosure Provision before that notice is issued, and the Department represented

— in unqualified terms

— that it wil l not take any enforcement action before the notice issues

. Dkt. 75 at 122

– 23 . That is unlikely to occur anytime soon, moreover, because the Department further represented the notice will “go through notice and comment rulemaking,” id . at 52, and will not take effect for at least thirty days following the promulgation of a final notice. See 5 U.S.C. § 553(d)

. Plaintiff asserts three potential injuries relevant to this provision : “r eputational injury, financial harm, and deprivation of their constitutional rights.” Dkt. 65 at 35. All of these harms, however, turn on the premise that at least one member school will be subject to the Repayment Rate Provision , and on the (incorrect) premise that the Departmen t will enforce the provision in the near future . At oral ar gument, CAPPS suggested that First Amendment harms are sui generis and that the mere risk of future enforcement may be enough to pose an irreparable injury. Dkt. 75 at 28. But the cases that recognize that type of harm are premised on the chilling effect that a speech

- regulating rule might have. See, e.g. , Chaplaincy of Full Gospel Churches , 454 F.3d at 301 (in order to make out claim of irreparable harm, “moving parties must also establish they are or will be engaging in constitutionally protected behavior to demonstrate that the allegedly impermissible government action would chill allowable individual conduct”)

. A risk of criminal prosecution for marching in parade, for example, might dissuade plaintiffs from attending, and that chill could provide a basis f or seeking preliminary relief. This case, however, is different in30

kind : CAPPS has failed to even identify any speech that could be chilled by the Repayment Rate Provision. In short, no substantial First Amendment issue will be presented until a member school faces some risk that it will be required to issue the warnings, and that risk is non

- existent at least until the Department promulgates the required notice. The Court, accordingly, concludes that CAPPS has not made the requisite showing to entitle it to a preliminary injunction with respect to the Repayment Rate Disclosure Provision. Borrower Defense Provision The final portion of the 2016 Rule that CAPPS seeks to enjoin is the B orrower D efense P rovision. As State A mici note, the parties at times conflate two distinct processes. Dkt. 67 at 49. The first process is addressed in the 2016 Rule, and it amends the way in which student borrowers may assert “defenses” to repaymen t of loans made to them by the Department under T itle IV, see 20 U.S.C. § 1087e(h). Under the 2016 Rule , student

- borrowers may now raise “defenses” to repayment affirmatively; that is, they need not default on a loan and wait to assert a de fense to repayment in a collection action. 2016 Rule, 81 Fed. Reg. at 76,083. In addition, the 2016 R ule changes the standard for what constitutes a defense to repayment. In the past, student

borrowers could only invoke defenses to repayment premised on violations of state law. 34 C.F.R. § 685.206(c)(1) . But, under the 2016 Rule, they may now rely on a new, federal standard applicable to loans dispersed on or after July 1, 2017. 2016 Rule, 81 Fed. Reg. at 76,083 . That new standard is available if (1) “th e borrower . . . has obtained against the school a nondefault, favorable contested judgment based on State or Federal law in a court or administrative tribunal;” (2) “the school the borrower received a Direct Loan to attend failed to perform its obligation s under the terms of a contract with the student;” or (3) “the school or any of its representatives . . . made a substantial misrepresentation . . . that the borrower reasonably relied on to the borrower’s detriment when the borrower decided to attend, or to continue attending, the31

school or decided to take out a Direct Loan.” Id . Finally, the new B orrower D efense P rovision authorizes “the Secretary [to] initiate a process to determine whether a group of borrowers, identified by the Secretary, has a borrower defense.” Id . at 76,084. The second process begins where the first ends and contemplates that the Department, having relieved a student

- borrower, in whole or in part, of his or her obligation to repay a Direct Loan, may seek to recover the amount due from the student ’ s school. 34 C.F.R. § 685.206(c)(3). Among other potential theories of recoupment , the 2016 Rule provide s that “the borrower is deemed to have assigned to, and relinquished in favor of, the Secretary any right to a loan refund (up to the amount discharged) that the borrower may have by contract or applicable law with respect to the loa n or the contract for educational services for which the loan was received, against the school.” NPRM , 81 Fed. Reg. at 39,353 . As the Department explained in the final 2016 Rule, it intends to “undertake any action to recover against a sch ool under specific procedures that are being developed and will ensure an opportunity for the school to present its defense and [to] be heard.” 2016 Rule, 81 Fed. Reg. at 75,960 . Those procedures “will be comparable to that provided” under existing re gulations “for actions to find, or to limit, suspend or terminate participation of, a school;” “[t]he hearing will be conducted by a Department official who is independent of the component of the Department bringing the action;” and “[a]ny decision reached in these proceedings would be reviewable under section 706 of the APA.” Id. Although the 2016 Rule permits “the school of the borrower” to offer certain “evidence or argument” in the proceeding between the student

- borrower and the Secretary, id . at 76,0 84 , the Department has represented to the Court that it will not invoke collateral estoppel to bind the school with respect to findings made in that proceeding, Dkt. 75 at 83

– 84.32

CAPPS challenges both processes. It challenges the Department’s authority to adopt the

new B orrower D efense P rovision and argues that, in any event, the provision is arbitrary and capricious and not the product of reasoned decision making under the APA. Dkt. 65 at 38

– 43

. And it argues that both steps in the process violate the D ue Process Clause, Article III, and the Seventh Amendment “because Department officials are responsible for both prosecuting and hearing cases,” and because “agency officials” are authorized “to adjudicate what in essence i s a private right.” Id . at 43

. Once again, however, the Court declines to reach the merits of CAPPS’s arguments because it has yet to demonstrate that CAPPS has standing to challenge any final rule and has not carried its burden of establishing irreparable injury. 1. Standing and Ripeness To the extent CAPPS challenges the standards and procedures applicable to the proceeding between the student

- borrower and the Secretary, it has yet to show that it has standing. As clarified at oral argument, that proceeding is not binding on the relevan t school; it binds only the student

- borrower. Dkt. 75 at 6

– 8. The question, then, is

— if the new rules governing the process between the student

- borrower and the Department are not set aside

— what “concrete and particularized” and “actual and imminent” injury, Lujan , 504 U.S. at 560 , will any CAPPS member likely suffer ? Or, more precisely because we are at the preliminary injunction phase, what has CAPPS offered to show that there is a “substantial likelihood” that it will be able to carry its burden of proving that at least one identified CAPPS member will suffer a concrete and imminent injury? Foo d & Water Watch, Inc. , 808 F.3d at 913. At leas t at this stage of the proceeding, CAPPS has failed to carry this burden. Notably, not one of the seven declar ations that CAPPS has submitted so much as mention s the B orrower D efense P rovision. Not a single school has indicated that the rule will affect i t s conduct in any33

way or that a proceeding between a student

- borrower and the Secretary is likely to have any effect on the school. It is possible that CAPPS might eventually show that the proceeding between a student

- borrower and the Secretary

— which is not binding on the school

— will cause a member school some cognizable injury

- in

- fact. Thus far , however , it has not done so. To the extent that CAPPS, instead, challenges the Department’s authority to bring a recoupment action against a CAPPS member school , that challenge faces both standing and ripeness difficulties. Ripeness is a justiciability doctrine designed “ ‘to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies.’ ” Nat’l Park Hospitality Ass’n v. Dep’t of the Interior , 538 U.S. 803, 807

– 08 (2003) (quoting Abbott Labs. v. Gardner , 387 U.S. 136, 148

– 49 (1967)); see also Devia v. Nuclear Regulatory Com m ’ n , 492 F.3d 421, 424 (D.C. Cir. 2007). “The ripeness doctrine is ‘drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.’” Nat’l Park Hospitality Ass’n , 538 U.S. at 808 (quoting Ren o v. Catholic Social Serv s . , Inc ., 509 U.S. 43, 57, n. 18 (1993) ). “Determining whether an administrative action is ripe for judicial review requires” the Court to “evaluate (1) the fitness of the issues for judicial decision and (2) the hardship to th e parties of withholding court consideration.” Id. (citing Abbott Labs , 387 U.S. at 149). For the most part, the standing and ripeness issues raised by CAPPS’s challenge to the Department’s recoupment authority overlap. As the Department explained in the final 2016 Rule, it is still “develop[ing]” procedures to govern actions “to recover against a school” based on loan obligations the Department decides to relieve under the new B orrower D efense P rovision. 2016 Rule, 81 Fed. Reg at 75,960 . Before such an action could commence , a student

borrower from a CAPPS member school would need to institute a borrower

- defense action; the34

Department would need to decide that action in favor of the student; the Department would need to develop procedures governing a recoupment action; and the Department would need to bring such an action. T he Court cannot discern on the present record whether

— and, if so, whe n

— a CAPPS member would be subject to a proceeding to recoup amounts foregone in a borrower

defense proceeding. E ven putting this threshold difficulty aside, CAPPS has yet to demonstrate that its challenge to the recoupment process is ripe for decision. To take one example, with the evidence now before it, the Court cannot determine whether the Department might seek to recover from a participating school based on a violation of the new, federal standard, or whether it would simply seek to recover based on the theory that it is subrogated to, or has been assigned, whatever rights the student borrower may have had against the school under state law. See 2016 Rule, 81 Fed. Reg. at 76,086

. T o take another example, CAPPS argues that the recoupment procedure is unconstitutional because the same “Department officials are respon sible for both prosecuting and hearing cases,” Dkt. 65 at 65, but the Court cannot evaluate that premise before the Department has finalized the rules that will govern those proceedings, see 2016 Rule, 81 Fed. Reg at 75,960

. Because these question s and ot hers that bear on CAPPS’s challenge remain unanswered, the Court concludes that CAPPS has not shown a “substantial likelihood” that it will be able to establish that the challenge is fit for review. 6

6 To be sure, portions of CAPPS’s challenge migh t be ; to the extent CAPPS argues that the Department is entirely without authority to seek recoupment, for example, a challenge to the provision assigning the borrower’s right to a loan refund to the Secretary might be fit for adju dication . But, even as to that more limited challenge, CAPPS has not carried its burden of showing that an identified member school faces an actual threat of injury

.35

Finally , given the undisputed availability of APA review of any final recoupment de cision, see 2016 Rule, 81 Fed. Reg. at 95,960 , it has not shown that the association or its members will face a significant “hardship” if review is postponed. 2. Irreparable Injury E ven if CAPPS has standing to bring a ripe challenge to some portion of t he B orrower D efense P rovision , CAPPS makes no plausible claim to irreparable injury. As noted above, none of CAPPS’s declarations even mentions the B orrower D efense P rovision and, as far as the Court can discern on the current record , there is no prospect that the Department will initiate a recoupment action against a CAPPS member school in the near future. Moreover, even if the Department were to do so, CAPPS does not dispute that the Department ’ s decision would be subject to A PA review , and a harm that can be remedied under the APA is not irreparable. 7 At oral argument, CAPPS suggested that, even if the result of a proceeding between a student

- borrower and the Secretary is not binding on the student ’ s school , a finding by the Secretary that the student should be relieved of its obligation to repay a student loan due to a breach of contract or a misrepresentation by the school “would obviously have a reputational damage” to the school. Dkt. 75 at 9. That assertion, however, is once again unsupported by any evidence and is far from self

- evident. Indeed, wh en asked at oral argument, the Department represented that its decisions in proceedings between student

- borrowers and the Department will not be published in the Federal Register. Dkt. 75 at 84; see also id. at 9. And, although it is

7 CAPPS does assert in its brief that the provision will require CAPPS member schools to “expend substantial transition costs to comply with these new regulations;” which will cause a “diversion of resources from schools’ mission of educating students;” and will cause a “regulatory whiplash,” if the Department later rescinds the rule. Dkt. 65 at 43

– 44. None of that, however, is supported by any evidence, nor is it self

- evident that any CAPPS members will sustain any loss related to the Borrower Defense Provision in the near future.36

possible that such a decision might be subject to a FOIA request, id . at 84, it is speculative

— at best

— to suggest that a student from an unidentified CAPPS member school might someday bring a successful borrower defense claim that reflects poorly on that school; that someone would obtain that decision under FOIA or some other disclosure statute; and that the disclosure of the decision would cause the school some material, reputational damage above and beyond whatever accusations of wrongdoing are already public. At least on the pr esent record, this theory does not demonstrat e that type of “ actual and not theoretical ” harm necessary to support a preliminary injunction. Wis. Gas Co. , 758 F.2d at 674

. The Court, therefore, must deny CAPPS’s motion with respect to the Borrower Defense Provision. * * * In sum, the Court concludes that CAPPS has failed to carry its burden of demonstrating that it is entitle d to the “extraordinary remedy” of a preliminary injun ction. Winter , 556 U.S. at 24. With respect to many of CAPPS’s challenges, the Court is not convinced that the a ssociation has shown a “substantial likelihood” that it has standing to sue. Food & Water Watch, Inc. , 808 F.3d at 913. With respect to some challenges, that conclusion is clear, while it is less certain as to others. But, as to each of the challenges that CAPPS raises in the p ending motion, it falls well short of the “high standard for irreparable injury” that the Court of Appeals “has set.” Chaplaincy of Full Gospel Churches , 454 F.3d at 297. Because the likelihood that the movant will suffer an irreparable injury is the sine qu a non for issuance of a preliminary injunction, that flaw is dispositive. See, e.g. , Chaplaincy of Full Gospel Churches , 454 F.3d at 297; Achagzai , 2016 WL 471274, at *3

– 4; Texas Chi ldren’ s Hosp. , 76 F. Supp. 3d at 241

– 42; Trudeau v. FTC ,37

384 F. Supp. 2d at 296. The Court will, accordingly, deny CAPPS’s motion for a preliminary injunction and set a schedule for cross

- motions for summary judgment. CONCLUSION For the foregoing reasons, Plai ntiff’s renewed motion to for preliminary injunction , Dkt. 65 , is he reby DENIED

. SO ORDERED

.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge

Date: October 16, 20 18