United States District Court, S.D. New York
OPINION & ORDER
HONORABLE PAUL A. CROTTY, UNITED STATES DISTRICT JUDGE.
The Century Foundation ("TCF"), moves for a
Temporary Restraining Order ("TRO") and Preliminary
Injunction ("PI") against the United States
Department of Education ("Department"), seeking to
(1) compel the Department to expedite its Freedom of
Information Act ("FOIA") request for documents that
TCF believes are necessary for it to comment on the
Department's upcoming decision to grant official
recognition to certain higher education accrediting agencies,
and (2) extend the notice and comment period, which the
Department scheduled to end on February 16, 2018, until 21
days after the documents have been produced. Dkt. No. 9. Upon
holding a hearing and considering the arguments, the Court
hereby GRANTS a TRO, and defers decision on a PI until
further argument by the parties at another hearing in one
week's time (or at a later time if both parties consent).
institution participating in the Title IV student financial
assistance programs must be accredited by an accrediting
agency "recognized" by the Secretary of the
Department of Education to be a reliable authority as to the
quality of education or training being offered. See
20 U.S.C. §§ 1001, 1099b. The Department does not
accredit institutions of higher education. Rather, as
required by Congress, see 20 U, SC § 1099b(o),
the Department has established a process for accrediting
agencies to apply for recognition, has set standards
governing agency recognition, and has developed a process for
ongoing monitoring of accrediting agencies. See
generally 34 C.F.R. Part 602.
statute, the Secretary is required to engage in
"solicitation of third-party information concerning the
performance of the accrediting agency or association."
20 U.S.C. § lO99b(n)(1)(A). Further, federal regulation
enacted pursuant to this statute requires that the
"Department staff publish a notice of the agency's
application or report in the Federal Register inviting the
public to comment on the agency's compliance with the
criteria for recognition and establish a deadline for
receipt of public comment." 34 C.F.R. § 602.32(a).
Once Department staff complete their evaluation, which
includes a "[r]eview of the public comments, "
id. § 602.32(b)(2), it "prepares a written
draft analysis" and sends the draft, "including all
third-party comments the Department received by the
established deadline" to the accrediting agency under
review so that it may respond prior to the staff finalizing
its analysis report and recommendation to a "Senior
Department Official" or "SDO." Id.
§§ 6O2.32(b)(3)-(5), (f)(1)-(5). The final staff
analysis is also provided to the National Advisory Committee
on Institutional Quality and Integrity ("NACIQI"),
a federal advisory committee subject to the Federal Advisory
Committee Act, including "written third-party comments
the Department received about the agency on or before the
established deadline." Id. §§
602.31(f)(3), 6O2.34(c)(4)-(5). All documents provided to
NACIQI are to be made available to the public. Id.
§ 602.31(f)(2). NACIQI then makes its own
recommendation, which it forwards to the SDO, who has the
authority to make a decision on behalf of the Department.
Id. § 602.36.
January 24, 2018, the Department published a notice in the
Federal Register. See 83 Fed. Reg. 3335 (Jan. 24,
2018) (hereinafter the "Solicitation"). The
Solicitation notified the public that one agency, the
Accrediting Council for Independent Colleges and Schools
("ACICS"), submitted an application for initial
recognition, and seven other agencies applied for renewal of
recognition. It also notified the public that the American
Bar Association ("ABA") and three other agencies
submitted compliance reports previously ordered by the
Department. The Solicitation called for third-party comments
"concerning the performance of accrediting
agencies" as required by statute and regulation. It also
explained that "[t]hese accrediting agencies will be on
the agenda for the Spring 2018 National Advisory Committee on
Institutional Quality and Integrity meeting. The meeting date
has not been determined, but will be announced in a separate
Federal Register notice."
Solicitation stated that written comments "must be
received" by February 16, 2018, and it further specified
that "[o]nly written material submitted by the deadline
to the email address listed in this notice, and in accordance
with these instructions, become part of the official record
concerning agencies scheduled for review and are considered
by the Department and NACIQI in their deliberations."
Regarding the compliance reports in particular, the
Solicitation stated that "[c]omments about an
agency's recognition after review of a compliance report
must relate to issues identified in the compliance
report." It concluded, "A later Federal Register
Notice will describe how to register to provide oral comments
at the meeting about the recognition of a specific
accrediting agency or State approval agency."
the Solicitation became public, TCF submitted two FOIA
requests to the Department, asking for disclosure of the
application submitted by ACICS and the compliance report
submitted by the ABA. See Habash Decl. ¶ 11;
Compl. Exs. B, C. TCF, a nonpartisan, non-profit section
501(c)(3) organization, devotes substantial resources to
ensuring that accrediting agencies comply with the standards
for recognition. See Habash Decl. ¶ 3. TCF
intended to use the application and compliance report to
provide an informed response to the Solicitation. As such,
TCF also requested expedited processing in light of the
looming deadline for written third-party comments.
See Compl. Ex. B at 1-3, Ex. C at 1-4. On February
6, 2018, the Department informed TCF that it denied the
requests for expedition. See Habash Decl. ¶ 17;
Compl. Exs. F & G. TCF then initiated this action.
February 8, 2018, TCF filed a Complaint against the
Department, seeking declaratory and injunctive relief. Upon
filing the complaint, TCF e-mailed the Department with a
courtesy copy of the Complaint and informed it that TCF was
preparing to file for emergency relief unless a resolution
could be reached. Elson Decl. Ex. 1. The Department declined
to respond. On February 12, 2018, TCF again reach out to the
Department but received no response. Id. On February
13, 2018, TCF moved for a temporary restraining order
("TRO") and preliminary injunction
("PI"), and the Court issued an order to show
cause. Dkts. 14-15. Today, two days later, both parties
appeared at a hearing, and the Court is prepared to rule on a
Rule of Civil Procedure 65(a)(1) provides that a "court
may issue a preliminary injunction only on notice to the
adverse party." Although the Rule does not specify when
notice must be given, Rule 6(c) states that any motion must
be served, along with notice of the hearing thereof, at least
14 days before the time set for the hearing. Fed.R.Civ.P.
6(c). Although the Court has discretion to modify this period
when the urgency that is characteristic of the
preliminary-injunction context warrants it, see Anderson
v. Davila, 125 F.3d 148, 156 (3d Cir. 1997), the Court
declines to exercise that discretion here, where the
Department asserts that its operations will be impaired by a
long delay in the recognition process and the Court believes
that further argument and evidence regarding the
Department's processes would be helpful. Hence, the Court
finds it appropriate to grant only a TRO at this stage.
Nevertheless, the Court exercises its discretion to schedule
the next hearing for February 22, 2018, which is only 9 days
from the date the motion was filed but 14 days from the date
TCF provided notice of the Complaint and its intent to seek
emergency relief. Per Rule 65(b)(2), the TRO will expire 14
days from today, on March 1, 2018, barring the grant or
denial of a preliminary injunction before that date.
is well-established that in this Circuit the standard for an
entry of a TRO is the same as for a preliminary
injunction." Nat'l Football League
Mgmt. Council v. Nat'l Football League Players
Ass'n, No. 17-cv-6761, 2017 WL 4685113, at *1
(S.D.N.Y. Oct. 17, 2017). A party seeking a preliminary
injunction must show "(a) irreparable harm and (b)
either (1) likelihood of success on the merits or (2)
sufficiently serious questions going to the merits to make
them a fair ground for litigation and a balance of hardships
tipping decidedly toward the party requesting the preliminary
relief." Citigroup Global Mkts., Inc. v. VCG Special
Opportunities Master Fund Ltd., 598 F.3d 30, 35 (2d Cir.
Court finds that TCF is entitled to a TRO prohibiting the
Department from enforcing the deadline to submit written
comments concerning ACICS and the ABA until the Court is in a
position to rule on the PI. Specifically, at least with
regard to its Administrative Procedure Act ("APA")
claim seeking to extend the comment period, TCF has
demonstrated serious questions going to the merits to make
them a fair ground for litigation, irreparable harm, and a
balance of hardships tipping decidedly in its favor. At this
time, the Court expresses no opinion on the merits of
TCF's claim that the Department also violated FOIA by
declining the requests for expedition.
TCF has established "serious questions going to the
merits to make them a fair ground for litigation."
Citigroup Global Mkts., 598 F.3d at 35. In a
challenge to agency action or inaction under the APA, a
reviewing court shall "determine all relevant questions
of law, interpret constitutional and statutory provisions,
and determine the meaning or applicability of terms of an
agency action." 5 U.S.C. § 706. If a court
determines that an agency action is "arbitrary,
capricious, an abuse of discretion, or otherwise not in
accordance with law, " then it "shall. .. hold
unlawful and set aside [such] agency action."
Id. § 706(2). TCF argues that the
Department's conduct is arbitrary and capricious because
it has denied public ...