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ACCREDITING COUNCIL for INDEPENDENT COLLEGES and ) SCHOOLS, ) Plaintiff, ) V UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ) ACCREDITING COUNCIL FOR INDEPENDENT COLLEGES AND ) SCHOOLS, ) Plaintiff, ) v. ) JOHN KING, JR., in his official ) Civil Action No. 16-2448 (RBW) capacity as Secretary of the Department ) of Education, and the UNITED ) STATES DEPARTMENT OF ) EDUCATION, ) Defendants, ) and ) ) COMMONWEALTH OF ) MASSACHUSETTS ) One Ashburton Place ) Boston, MA 02108; ) ) STATE OF ILLINOIS ) 100 West Randolph Street ) Chicago, IL 60601; ) ) STATE OF MAINE ) 6 State House Station ) Augusta, ME 04333; ) ) STATE OF NEW YORK ) 120 Broadway, 3rd floor ) New York, NY 10271; ) ) DISTRICT OF COLUMBIA ) 441 4th Street, N.W., 6th Floor ) Washington, DC 20001; and ) ) THE ATTORNEY GENERAL OF ) MARYLAND ) 200 St. Paul Place, 16th Floor ) Baltimore, MD 21202, ) ) [Proposed] Defendant-Intervenors ) MEMORANDUM IN SUPPORT OF THE STATE MOVANTS’ MOTION TO INTERVENE ii TABLE OF CONTENTS INTRODUCTION......................................................................................................................... 1 ARGUMENT ................................................................................................................................. 5 I. THE STATE MOVANTS ARE ENTITLED TO INTERVENE AS OF RIGHT ........... 5 A. The State Movants’ Motion is Timely ............................................................................. 5 B. The State Movants Have Important Interests in This Action ........................................... 6 C. The State Movants’ Interests May Be Impaired Absent Intervention ............................ 10 D. Existing Parties Do Not Adequately Represent The State Movants’ Interests .............. 10 E. The State Movants Have Standing to Pursue This Action ............................................. 12 II. IN THE ALTERNATIVE, THE COURT SHOULD EXERCISE ITS DISCRETION TO GRANT PERMISSIVE INTERVENTION ...................................... 13 CONCLUSION ........................................................................................................................... 14 iii TABLE OF AUTHORITIES CASES Akiachak Native Cmty. v. U.S. Dep’t of Interior, 584 F. Supp. 2d 1 (D.D.C. 2008) ...................................................................................... 12 Crossroads Grassroots Policy Strategies v. Federal Election Com’n, 788 F.3d 312 (D.C. Cir. 2015) .......................................................................................... 13 E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 1042 (D.C. Cir. 1998) ........................................................................................ 13 Forest Cty. Potawatomi Cmty. v. United States, 317 F.R.D. 6 (D.D.C. 2016) .................................................................................. 10, 11, 12 Fund For Animals, Inc. v. Norton, 322 F.3d 728 (D.C. Cir. 2003) ................................................................................... passim Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.C. Cir. 1972) ............................................................................................ 6 Jones v. Prince George’s Cty., Maryland, 348 F.3d 1014 (D.C. Cir. 2003) .......................................................................................... 6 Karsner v. Lothian, 532 F.3d 876 (D.C. Cir. 2008) .................................................................................. 5, 6, 10 Massachusetts v. Microsoft Corp., 373 F.3d 1199 (D.C. Cir. 2004) .......................................................................................... 5 Natural Res. Def. Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977) .......................................................................................... 10 Nuesse v. Camp, 385 F.2d 694 (D.C. Cir. 1967) ................................................................................ 7, 11, 13 Roane v. Leonhart, 741 F.3d 147 (D.C. Cir. 2014) ............................................................................................ 6 Roeder v. Islamic Republic of Iran, 333 F.3d 228 (D.C. Cir. 2003) .......................................................................................... 12 iv Safari Club Int’l v. Salazar, 281 F.R.D. 32 (D.D.C. 2012) .............................................................................................. 6 Sierra Club v. Van Antwerp, 523 F. Supp. 2d 5 (D.D.C. 2007) ...................................................................................... 13 Trbovich v. United Mine Workers, 404 U.S. 528 (1972) .......................................................................................................... 11 U.S. v. American Tel. & Tel. Co., 642 F.2d 1285 (D.C. Cir. 1980) ........................................................................................ 11 WildEarth Guardians v. Nat’l Park Serv., 604 F.3d 1192 (10th Cir. 2010) ........................................................................................ 10 Wildearth Guardians v. Salazar, 272 F.R.D. 4 (D.D.C. 2010) .............................................................................................. 11 FEDERAL STATUTES 5 U.S.C. § 701 et seq................................................................................................................. 3, 13 20 U.S.C. § 1099b ........................................................................................................................... 1 28 U.S.C. § 1331 ........................................................................................................................... 13 RULES AND REGULATIONS 34 C.F.R. § 602.1 ............................................................................................................................ 7 D.D.C. Loc. R. 7(j) ......................................................................................................................... 5 Fed. R. Civ. P. 24(a)(2) .......................................................................................................... passim Fed. R. Civ. P. 24(b)(1)(B) ........................................................................................................... 12 Secretary’s Procedures and Criteria for Recognition of Accrediting Agencies, 59 Fed. Reg. 22250 (April 29, 1994) ................................................................................................................ 6 v STATE REGULATIONS 610 Mass. Code Regs. § 2.07(5) ..................................................................................................... 7 8 NYCRR § 49-1.2 ......................................................................................................................... 7 8 NYCRR § 49-2.3 ......................................................................................................................... 7 Ill. Admin. Code tit. 23, § 1030.30(a)(14) ...................................................................................... 7 Ill. Admin. Code. tit. 23, § 1030.30(c)(3) ....................................................................................... 7 Md. Code Regs. 13B.02.01.10A ..................................................................................................... 7 Md. Code Regs. 13B.02.02.08L ..................................................................................................... 7 STATE STATUTES Mass. Gen. Laws ch. 15A, § 9 ........................................................................................................ 8 Md. Code Ann., Educ. § 11-202(a)(1)(3) ....................................................................................... 7 NY Education Law § 224 ............................................................................................................... 7 OTHER AUTHORITIES COMMONWEALTH OF MASSACHUSETTS, OFFICE OF STUDENT FINANCIAL AID, MASSACHUSETTS NO INTEREST LOAN PROGRAM: POLICIES AND PROCEDURES MANUAL PROGRAM YEAR 2015- 2016 ............................................................................................................................................. 7 vi INTRODUCTION The Commonwealth of Massachusetts, the States of Illinois, Maine, and New York, the Attorney General of Maryland, and the District of Columbia, by and through its Attorney General, (the “State Movants”) hereby submit the following memorandum of law in support of their Motion to Intervene as defendants as of right under Rule 24(a) of the Federal Rules of Civil Procedure and, alternatively, with the Court’s permission under Rule 24(b). The State Movants have important interests in this litigation that would be impaired if ACICS were to prevail and that cannot be represented adequately by Defendants. Accordingly, the State Movants’ timely Motion to Intervene satisfies Rule 24(a)’s requirements for intervention as of right. At issue in this litigation is the Secretary of Education’s (the “Secretary”) decision to terminate the recognition of the Accrediting Council for Colleges and Schools (“ACICS”) as a federally recognized accreditor of postsecondary education institutions and programs. Following a lengthy administrative process that entailed multiple levels of review, the Secretary determined that ACICS was noncompliant with numerous regulatory criteria that are prerequisites for federal recognition. Based on “the nature and scope of ACICS’s pervasive noncompliance,” the Secretary exercised his discretion to terminate ACICS’s federal recognition. In the matter of: ACICS, Dkt. No. 16-44-O, Decision of the Secretary (Dec. 12, 2016) at 1 (attached hereto as Exhibit
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