UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL STUDENT LEGAL DEFENSE NETWORK, Plaintiff, Civil Action No. 21-1923 (BAH) Judge Beryl A. Howell v. UNITED STATES DEPARTMENT OF EDUCATION, Defendant. MEMORANDUM OPINION Plaintiff National Student Legal Defense Network challenges the United States Department of Education’s (“ED”) withholding, in response to plaintiff’s request, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, of eight unique email communications in email chains between an ED attorney and an attorney for the Social Security Administration (“SSA”), occurring between September 13 and 23, 2019, which communications have been largely redacted on nineteen disclosed pages. ED withheld release of the disputed emails under FOIA Exemption 5, 5 U.S.C. § 552(b)(5), asserting that these emails are subject to the attorney work product and deliberative process privileges. The parties have now cross-moved for summary judgment. Def.’s Mot. Summ. J., ECF No. 19 (“Def.’s Mot.”); Pl.’s Cross-Mot. Summ. J. (“Pl.’s Cross-Mot.”), ECF No. 23. Following in camera review of the disputed withheld records, for the reasons set forth below, summary judgment is granted to ED and denied to plaintiff. I. BACKGROUND 1 The background underlying plaintiff's FOIA request is described below, followed by a review of plaintiff’s FOIA request and initiation of the instant lawsuit. A. Gainful Employment Rule The Higher Education Act of 1965, as amended, (“HEA”) 20 U.S.C. § 1001, et seq., authorizes the federal government to deliver financial aid to students at post-secondary institutions of higher learning. 20 U.S.C. § 1070. This educational loan program sponsored by the federal government “provide[s] more than $150 billion in new federal aid” to students at post-secondary schools every year, including “private for-profit institutions, public institutions, and private nonprofit institutions.” Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 435 (D.C. Cir. 2012) (citation omitted). While these students are expected eventually to repay their debt to the federal government, the post-secondary institutions attended by recipient students receive the tuition payments up front, so Congress enacted a series of statutory requirements to discourage these institutions from taking students’—and thus the taxpayers’—money without providing those students with a quality education. Id. One such protection established by Congress is the “gainful employment” rule, which limits institutions eligible to receive federal loans to those schools that “provide[] an eligible program of training to prepare students for gainful employment in a recognized occupation[.]” 20 U.S.C. § 1002(b)(1)(A)(i), (c)(1)(A). No definition of “gainful employment” is provided in the statute, but the authority to “make, promulgate, issue, rescind, and amend rules and regulations governing” Title IV programs is vested with ED’s Secretary, id. § 1221e–3, including the authority to define, via regulation, what constitutes “gainful employment,” Ass’n of Priv. Sector Colls. & Univs. v. Duncan, 110 F. Supp. 3d 176, 182 (D.D.C. 2015). 2 In 2014, ED implemented regulations for the gainful employment rule, setting criteria to determine the eligibility of institutions to participate in federal student aid programs. See 79 Fed. Reg. 16,426, 16,433 (Mar. 25, 2014); accord Maryland …
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