Pearl River Union Free School District v. Duncan (56 F. Supp. 3d 339, 2015)

AMENDED OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Pearl River Union Free School District (“Plaintiff’) brings this Action against Defendants Arne Duncan, as Secretary of the United States Department of Education, and the United States Department of Education’s Office for Civil Rights (“OCR”) (collectively, “Defendants”), alleging that OCR’s issuance of a Letter of Findings setting forth its determinations in regard to an alleged incident of racial harassment was arbitrary and capricious, in violation of the Administrative Procedure Act, 5 U.S.C. §§ 701 et seq. (“the APA”), and deprived Plaintiff of both procedural and substantive due process, in violation of the Fifth Amendment to the United States Constitution. Defendants move to dismiss Plaintiffs APA and Fifth Amendment claims on the ground that Plaintiff lacks standing to assert them. Defendants also move to dismiss Plaintiffs APA claims on the ground that the APA bars their review by this Court, as OCR’s issuance of the Letter of Findings was not final agency action. For the following reasons, Defendants’ Motion To Dismiss is granted.

I. BACKGROUND

A. Factual Background

The following facts are taken from the allegations contained in Plaintiffs Amended Complaint, which allegations the Court accepts as true for the purpose of deciding Defendants’ Motion to Dismiss. On February 23, 2011, OCR received a complaint against Plaintiff, in which the complainant “alleged ... that [Plaintiff] discriminated against her son ..., a student at Ardsley High School and a member of the Ardsley [High School] basketball team, on the basis of his race.” (Am. Compl. ¶¶ 6-7 (Dkt. No. 20).) Specifically, the complainant alleged that Plaintiff “failed to appropriately respond to an incident of racial harassment which allegedly occurred” approximately one week earlier, on February 18, 2011, “at a basketball game played at Pearl River High School between the Pearl River High School team and the Ardsley High School team,” at which “a spectator allegedly] yelled a racial slur as the [complainant’s son] came onto the basketball court to play in the game.” (Id. ¶ 7.)

In response, Plaintiff conducted what it describes in its Amended Complaint as “a prompt and comprehensive investigation into the allegations made by the Complainant,” “which included [Plaintiff] interviewing 31 witnesses and viewing a video recording of the basketball game.” (Id. ¶ 8.) These 31 interviewees included students, staff, and coaches from within the school district, as well as staff from Ards-ley High School, the referees from the game, and other members of the community. (Id.) However, according to Plaintiff, its “investigation revealed no credible evidence suggesting that an incident of racial harassment had occurred,” as “[n]one of the witnesses heard the alleged racial slur uttered, and the slur could not be detected on the video recording of the basketball game.” (Id. ¶ 9.)

On March 10, 2011, OCR notified Plaintiff by letter that “it was opening an investigation regarding [the complainant’s] allegation” “in accordance with its duties to enforce Title VI of the Civil Rights Act of 1964 ... and its implementing regulation[s] ..., which prohibit discrimination on the basis of race, color or national origin in programs and activities receiving financial assistance from the U.S. Department of Education.” (Id. ¶ 10.) Plaintiff reproduced portions of that letter in its Amended Complaint:

Please note that opening the allegation for investigation in no way implies that OCR has made a determination with regard to its merits. During the investigation, OCR is a neutral fact-finder, collecting and analyzing relevant evidence from the complainant, the recipient, and other sources, as appropriate. OCR will ensure that its investigation is legally sufficient and is dispositive of the allegations, in accordance with the provisions of Article III of OCR’s Case Processing Manual. ....

Also, when appropriate, a complaint may be resolved before the conclusion of investigation after the recipient expresses an interest to OCR to resolve the complaint. In such cases, OCR obtains a resolution agreement signed by the recipient. This agreement must be aligned with the complaint allegations or the information obtained during the investigation, and it must be consistent with applicable regulations.

(Id. (emphasis removed).)

OCR also provided Plaintiff with “a copy of the OCR Complaint Processing Procedures,” from which much of the language from OCR’s March 10 letter appears to have been drawn:

A complaint may also be resolved before the conclusion of the investigation, if the recipient expresses an interest in resolving the complaint. If OCR determines that the resolution of the complaint before the conclusion of the investigation is appropriate, OCR will attempt to negotiate an agreement with the recipient. OCR will notify the complainant of the recipient’s request of the complaint and will keep the complainant informed throughout all stages of the resolution process. The provisions of the resolution agreement that is reached must be aligned with the complaint allegations and the information obtained during the investigation, and must be consistent with applicable regulations. A resolution agreement reached before the conclusion of the investigation will be monitored by OCR.

(Id. ¶ 11 (emphasis removed).)

The Complaint Processing Procedures also state the following:

If OCR determines that a recipient failed to comply with one of the civil rights laws that OCR enforces, OCR will contact the recipient and will attempt to secure the recipient’s willingness to negotiate a voluntary resolution agreement. If the recipient agrees to resolve the complaint, the recipient will negotiate and sign a written resolution agreement that describes the specific remedial action that recipient will undertake to address the area(s) of noncompliance identified by OCR. The terms of the resolution agreement, if fully performed, will remedy the identified violation(s) in compliance with applicable civil rights laws. OCR will monitor the recipient’s implementation of the terms of the resolution agreement to verify that the remedial actions agreed to by the recipient have been implemented consistent with the terms of the agreement and that the area(s) of noncompliance identified were resolve [sic] consistent with applicable civil rights laws.

If the recipient refuses to negotiate a voluntary resolution agreement or does not immediately indicate its willingness to negotiate, OCR will inform the recipient that it has 30 days to indicate its willingness to engage in negotiations to voluntarily resolve identified areas of noncompliance, or OCR will issue a Letter of Findings to the parties providing the factual and legal bases for a finding noncompliance [sic],

(Id. ¶ 13 (emphasis removed).)

After receiving the March 10, 2011 letter, Plaintiff contacted OCR Compliance Team Investigator Geraldo Perez (“Mr. Perez”), in order “to express [Plaintiffs] interest in resolving the complaint through execution of a resolution agreement in accordance with Sections 302 and 304 of the OCR Case Processing Manual” (“the CPM”). (Id. ¶ 14 (emphasis removed).) Plaintiff noted that its “interest in resolving the complaint through execution of a resolution agreement” was “notwithstanding its strong belief that its comprehensive investigation yielded no credible evidence suggesting that the alleged incident occurred.” (Id. ¶ 15.)

Section 302, the first section of the CPM that Plaintiff cited, reads in part as follows:

A complaint may be resolved at any time when, before the conclusion of an investigation, the recipient expresses an interest in resolving the complaint. OCR should inform the recipient that this process is voluntary. OCR’s determination that it is appropriate to resolve the complaint during the course of an investigation must be approved by the Office Director or designee. If approved, OCR will immediately notify the complainant of the recipient’s interest in resolving the complaint and will keep the complainant informed throughout all stages of this resolution process. The provisions of the resolution agreement will be aligned with the complaint allegations or the information obtained during the investigation, and will be consistent with applicable regulations. A copy of the resolution agreement will be included with the resolution letter. Resolution letters and agreements must be approved by the Chief Attorney or desig-nee and the Office Director or designee, in consultation with the Enforcement Director.

(Id. ¶ 17.)

Section 304, the second such section, includes the following language:

The complaint will be considered resolved and the recipient deemed compliant if the recipient enters into an agreement that, fully performed, will, remedy the complaint (pursuant to Section 302) or identified violations (pursuant to Section 303). A copy of the agreement will be included with the resolution letter (if obtained during the investigation, pursuant to Section 302) or letter of finding(s) (if obtained after a compliance determination is made at the end of the investigation, pursuant to Section 303). Resolution agreement planning will be documented in the case file either separately or by reference to the resolution agreement.

(Id. ¶ 18 (emphasis removed).)

On September 29, 2011, Plaintiff “forwarded to all three OCR team members [who] had been involved in the-matter as of that date,” including Mr. Perez, Compliance Team Attorney Raghavan Pranita (“Ms. Pranita”), and Compliance Team Leader Erin Gimbel (“Ms. Gimbel”), “a proposed copy of the proposed resolution agreement.” (Id. ¶ 19.) In the same email, Plaintiff also “challenged a statement made by Ms. [sic] Perez to the effect that [Plaintiffs] Superintendent of Schools Dr. Auriemma [ (“Dr. Auriemma”) ] had allegedly-stated that three adults had communicated to him that they had heard a racial slur at the ... basketball game.” (Id.) Plaintiff informed OCR that Dr. Au-riemma “had advised that he had never made any such statement and that such communications to him had, in fact, not occurred.” (Id.) Later that same day, Ms. Gimbel advised Plaintiff “that OCR’s notes from its interview Of Dr. Auriemma would be reviewed.” (Id. ¶ 20.) In response, in a second email to OCR, Plaintiff “noted that [Plaintiffs] Board of Education felt strongly that [Plaintiff] had done nothing, wrong and was not prepared to agree to take action that would send a message that [Plaintiff] acknowledged having done anything wrong and made clear that [Plaintiff] would like to ‘cooperatively resolve this matter.’ ” (Id. ¶ 21.).

Plaintiff and OCR eventually entered into a Resolution Agreement on November 15, 2011, “whereby [OCR] and [Plaintiff] agreed to ‘resolve the compliance concerns’ regarding the complaint.” (Id. ¶ 22.) Pursuant to the Resolution Agreement, Plaintiff “assure[d] [OCR] that it [would] take the actions detailed below”:

By November 30, 2011, [Plaintiff] will conduct further investigation to determine the source of the alleged racial slur made during the basketball game on February 18, 2011; including but not limited to, attempting to interview the complainant, the [complainant’s son], and other witnesses identified by the complainant and the [complainant’s son], and interviewing at least five additional student witnesses who were located in or near [Plaintiffs] student section during the game. If the investigation reveals the identity of the alleged haras-serfs), [Plaintiff] will take prompt and effective steps reasonably calculated to end the harassment, and prevent the harassment from recurring. [Plaintiff] will notify the complainant of the outcome.

.... By December 15, 2011, [Plaintiff] will provide OCR with' a copy of the investigative report, including a description of any action taken if the investigation reveals the identity of the alleged harasser(s). Additionally, [Plaintiff] will provide OCR with documentation demonstrating that [Plaintiff] notified the complainant of the outcome of the investigation.

By December 14, 2011, [Plaintiff] will review and revise, as necessary, its harassment policy and related grievance procedures to address complaints of harassment based on race, color and national origin. These procedures will provide for the prompt and equitable resolution of complaints of harassment based on race, color and national origin. The procedures will include at a minimum [a number of requirements described in the Resolution Agreement.]

Once revised, [Plaintiff] will utilize its on-going training programs that raise awareness of the issue of harassment for staff and students, to ensure that staff and students are aware of these revised policies and procedures and the prohibition against racial harassment.

By December 14, 2011, [Plaintiff] will provide its revised harassment policy and any related grievance procedures to OCR for review and concurrence.

Within fifteen (15) days of [Plaintiffs] receipt of OCR’s concurrence with respect to the revised policy and any grievance procedures, [Plaintiff] will provide OCR with documentation to substantiate that it has formally adopted the revised policy and procedures; updated its printed publications and on-line publications with the revised policy and procedures (inserts may be used pending reprinting of these publications in the 2012-13 school year); electronically disseminated the revised policy and grievance procedures to those high school students, parents, and ... staff that [Plaintiff] has e-mails for, and mailed copies of the revised Code of Conduct pages to high school parents. This, documentation will include at a minimum (i) printouts or a link to all online publications containing the revised policy and grievance procedures; (ii) evidence of the electronic dissemination of the revised policy and grievance procedures to high school students, parents and ... staff, as described [in the Resolution Agreement]; and (in) if not yet finalized, copies of inserts for printed publications.

By January 1, 2012, [Plaintiff] will provide to OCR copies of the printed versions of all publications disseminated to high school students, parents, and ... staff containing the revised policy and grievance procedures.

(Resolution Agreement (Nov. 15, 2011) (“Resolution Agreement”) 1-3.)

The Resolution Agreement further provided that Plaintiff “understands that OCR will not close the monitoring of this agreement until OCR determines that the recipient has fulfilled the terms of this agreement and is in compliance with the regulation ... at issue in this case”; that Plaintiff “understands that by signing this agreement, it agrees to provide data and other information in a timely manner in accordance with the reporting requirements of this agreement”; and that “during the monitoring of this agreement, if necessary, OCR may visit [Plaintiff], interview staff and students, and request such additional reports or data as are necessary for OCR to determine whether [Plaintiff] has fulfilled the terms of this agreement and is in compliance with the regulation ... at issue in this case.” (Id. at 3.) Importantly, the Resolution Agreement also stated that its execution “does not constitute an admission that [Plaintiff] has committed any violation of Title VI or its implementing regulations. Nor does execution of this Resolution Agreement constitute any admission of other wrongdoing by [Plaintiff]” (Id)

The events giving rise to the instant Action took place two days after the Resolution Agreement was executed. On November 17, 2011, OCR “notif[ied] [Plaintiff] of the determination made by [OCR] regarding the ... complaint filed against [Plaintiff]” in a Letter of Findings, which stated the following:

In its investigation, OCR reviewed documentation the complainant and [Plaintiff] provided. OCR also interviewed the complainant, the [complainant’s son], staff from Pearl River, coaching staff from Ardsley School District (Ardsley), and other witnesses to the alleged incident. In addition, OCR reviewed a video recording of the basketball game, held on February 18, 2011.

... OCR determined that there was sufficient evidence to conclude that the incident occurred as alleged. OCR further determined that [Plaintiff] had actual notice of the incident and promptly investigated the incident; however, OCR determined that [Plaintiffs] investigation was incomplete and insufficient. Specifically, [Plaintiff] did not attempt to interview more than three students to determine the source of the slur, even though [Plaintiff] was advised that the slur originated from the section of the bleachers where [Plaintiffs] students were seated. Further, [Plaintiff] did not interview the complainant, the [complainant’s son], or any of the witnesses who advised [Plaintiff] that they heard the racial slur, and could have provided more information to assist [Plaintiff] in identifying the source of the slur.

[Plaintiff] executed the ... Resolution Agreement to resolve this complaint. OCR will monitor [Plaintiffs] implementation of the Resolution Agreement. Please be advised that if [Plaintiff] fails to comply with its terms, OCR will resume its investigation of this complaint.

This letter sets forth OCR’s determination in an individual OCR case. This letter is not a formal statement of OCR policy and should not be relied upon] cited, or construed as such. OCR’s formal policy statements are approved by a duly authorized OCR official and made available to the public. The complainant may have the right to file a private suit in federal court whether or not OCR finds a violation.

Under the Freedom of Information Act, 5 U.S.C. § 552, it may be necessary to release this letter and related correspondence and records upon request. In the event that OCR receives such a request, it will seek to 'protect to the extent provided by law, personally identifiable information that if released could constitute an unwarranted invasion of personal privacy.

(Decl. of Ellen Blain in Supp. of Mot. To Dismiss, Ex. A (“Letter of Findings”), at 1 — 4.)

Three days after OCR issued the Letter of Findings, Plaintiff “notified [OCR] of its demand that the Letter of Findings be ‘recalled, rescinded and otherwise repudiated and that the matter be closed through the issuance of the Resolution Letter.’” (Am. Compl. ¶ 36.) Although OCR did not take this requested action, it “determined that [Plaintiff] complied with every requirement of the ... Resolution Agreement, concluded its monitoring of the agreement, and closed the case against [Plaintiff]” by letter dated March 6, 2012. (Id. ¶ 39.)

According to Plaintiff, to date, OCR has “refused to rescind its determination and finding in the Letter of Findings that there was sufficient evidence to conclude that the incident occurred on February 18, 2011 as alleged by the [c]omplainant and that [Plaintiffs] investigation of the Complainant’s allegations was incomplete and insufficient.” (Id. ¶40.) Plaintiff alleges that “[t]he contents and substance of the Letter of Findings is defamatory and has caused [Plaintiff] profound embarrassment,” and “has degraded [Plaintiffs] reputation for being efficient, fair-minded and race-neutral in the performance of its obligations as a school district with a substantially Caucasian student and staff population towards its minority students and their parents, including in its investigation of claims of racial harassment as against African-American students.” (Id. ¶ 43.) Plaintiff further alleges that the Letter of Findings “was provided to the Complainant by [Defendants],” and that “the substance of the contents of the Letter of Findings ... were published in local newspapers and have consequently become a matter of public knowledge in the community served by [Plaintiff] as well as the public in general.” (Id. ¶ 42.)

Based on the foregoing allegations, Plaintiff asserts two different grounds for relief. First, Plaintiff claims that the determinations in OCR’s Letter of Findings were “arbitrary, capricious, an abuse of discretion, without the observance of the procedures required by law and otherwise not in accordance with law and should be set aside by this Court” under the APA. (Id. ¶49.) Second, ■ Plaintiff claims that such determinations “deprived [it] of both procedural and substantive due process in violation of the [Fifth] Amendment to the United States Constitution.” (Id. ¶ 51.) Plaintiff asks that the Court “compel [OCR] to withdraw and rescind their determination that ‘the incident occurred as alleged’ and that [Plaintiffs] ‘investigation was incomplete and insufficient,’ ” and that the Court “grant [Plaintiff] such other and further relief as the Court may deem just and proper, including an award of [Plaintiffs] reasonable attorney fees and costs pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.” (Id. ¶¶ 51(1)-(2).)

B. Procedural Background

Plaintiff filed its original Complaint on April 13, 2012. (See Dkt. No. 1.) On January 4, 2013, Defendants filed a Motion To Dismiss, in which they argued that, because the Letter of Findings was not “final agency action,” the APA precluded its review. (See Dkt. Nos. 9-11.) Plaintiff filed its Opposition to Defendants’ Motion on January 23, 2013, (see Dkt. Nos. 12-13), to which Defendants replied on March 15, 2013, (see Dkt. No. 15).

However, before the Court decided Defendants’ Motion, it issued an Order, in keeping with its “independent obligation to consider the presence or absence of subject matter jurisdiction sua sponte,” directing the Parties to “file supplemental briefs with the Court addressing the issue of Plaintiffs standing.” (Order (Apr. 30, 2013) (Dkt. No. 16).) Following the Parties’ submission of responsive memoranda, the Court issued a second Order:

In its supplemental brief on standing, Plaintiff focused on establishing that the reputational injury [that it allegedly suffered] qualifies as an injury in fact for purposes of establishing [Plaintiffs] standing to challenge the Defendants’ action through the instant case, and Plaintiff asserted no other basis for standing. However, Plaintiffs Complaint does not include any allegations with respect to reputation. A plaintiff may not rely on an unpled injury to establish standing. Accordingly, because the Complaint includes no allegations of reputational injury, or any other injury in fact, the Court finds that Plaintiff has failed to meet its burden of establishing standing.

However, the Court notes that in certain circumstances, reputational injury may be sufficient to establish standing. Therefore, the Complaint is dismissed without prejudice, and Plaintiff is granted leave to file an amended complaint alleging 'an injury - Because the Court has dismissed the Complaint on standing grounds, Defendants’ motion to dismiss on the basis of APA finality is moot and denied without prejudice.

(Order (June 5, 2013) (alterations, citations, and internal quotation marks omitted) (Dkt. No. 19.).) Pursuant to this Order, Plaintiff filed an Amended Complaint on June 20, 2013. (See Dkt. No. 20.) Defendants filed a second Motion To Dismiss on September 23, 2013, (see Dkt. Nos. 30-32), to which Plaintiff responded the following day, (see Dkt. No. 33). Defendants then replied on October 30, 2013, (see Dkt. No. 36), at which point Defendants’ Motion was fully submitted. The Court held oral argument on August 7, 2014.

II. DISCUSSION

A. Standard of Review

Defendants move to dismiss Plaintiffs Amended Complaint on two separate grounds. First, they argue that Plaintiff lacks standing. (See Defs.’ Mem. in Supp. of Mot. To Dismiss (“Defs.’ Mem.”) 12-17.) Second, they make substantially the same argument that they made in their Motion To Dismiss Plaintiffs original Complaint— that the APA precludes the Court’s review of the Letter of Findings, because the Letter of Findings did not constitute final agency action. (See id. at 17-25.) Defendants ground this second argument in Section 704 of the APA, which provides that “final agency action for which there is no other adequate remedy in a court [is] subject to judicial review,” but that “[a] preliminary, procedural, or intermediate agency action or ruling” is subject to challenge only “on the review of the final agency action.” 5 U.S.C. § 704; see also Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 659, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (“The federal courts ordinarily are empowered to review only an agency’s final action .... ”); Shakhnes v. Berlin, 689 F.3d 244, 260 (2d Cir.2012) (“Under the Administrative Procedure Act, courts may not review agency actions unless such actions are ‘final.’” (citation omitted)).

Defendants’ argument that Plaintiff lacks standing is jurisdictional in nature, and is thus properly brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure. See Amidax Trading Grp. v. S.W.I.F.T. SCRL, 671 F.3d 140, 145 (2d Cir.2011) (“[T]o survive [the defendants’] Rule 12(b)(1) motion to dismiss, [the plaintiff] must allege facts that affirmatively and plausibly suggest that it has standing to sue.”); Arroyo v. PHH Mortg. Corp., No. 13-CV2335, 2014 WL 2048384, at *4 (E.D.N.Y. May 19, 2014) (“Although [the defendant] does not mention Rule 12(b)(1) specifically, [its] argument regarding standing raises a question of subject matter jurisdiction.”). However, the proper procedural vehicle for moving to dismiss a complaint on the basis of the APA’s finality requirement is less clear. Although the Second Circuit has previously “suggested that [the APA’s finality requirement] delimits the subject matter jurisdiction of federal courts,” it has more recently noted that “[i]t is uncertain in light of recent Supreme Court precedent whether [that requirement is] truly jurisdictional or [is] rather [an] essential element[] of [an] APA claim[ ] for relief.” Sharkey v. Quarantillo, 541 F.3d 75, 87 & n. 10 (2d Cir.2008) (citing Arbaugh v. Y & H Corp., 546 U.S. 500, 514-15, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)); see also Cnty. of Westchester v. U.S. Dep’t of Hous. & Urban Dev., No. 13-CV-2741, 2013 WL 4400843, at *3 n. 7 (S.D.N.Y. Aug. 14, 2013) (same).

If the APA’s finality requirement is in fact jurisdictional in nature, then Defendants’ challenge on this ground is properly considered under the standard of review applicable to motions brought under Rule 12(b)(1), just like their argument that Plaintiff lacks standing. See Amidax, 671 F.3d at 145; Arroyo, 2014 WL 2048384, at *4. However, if the requirement is instead merely an essential element of an APA claim for relief, then Defendants’ challenge is properly considered under the standard of review applicable to motions brought under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Lexmark Int’l, Inc. v. Static Control Components, Inc., — U.S.-, 134 S.Ct. 1377, 1391 n. 6, 188 L.Ed.2d 392 (2014) (noting that “any ... element of a cause of action ... must be adequately alleged at the pleading stage in order for the case to proceed”); In re Lululemon Sec. Litig., 14 F.Supp.3d 553, 562, 2014 WL 1569500, at *1 (S.D.N.Y. Apr. 18, 2014) (granting a motion to dismiss under Rule 12(b)(6) where the defendant argued that the complaint “fail[ed] to adequately allege the key elements of a cause of action”); Burgis v. Dep’t of Sanitation City of New York, No. 13-CV-1011, 2014 WL 1303447, at *3 (S.D.N.Y. Mar. 31, 2014) (granting a motion to dismiss where the defendants argued that the “plaintiffs [had] not pleaded the necessary elements of a prima facie case, as required by Fed.R.Civ.P. 12(b)(6)”); Matana v. Merkin, 989 F.Supp.2d 313, 325 (S.D.N.Y.2013) (“In Rule 12(b)(6) terms, the Amended Complaint fails to plausibly plead [certain] element^] .... ”). Although the Second Circuit has not yet definitively resolved this issue, the better view appears to be that the requirement is not jurisdictional in nature, but is instead merely an essential element of an APA claim for relief. See Sharkey, 541 F.3d at 87 n. 10 (collecting cases from the First, Fourth, Sixth, and D.C. Circuits holding or suggesting that the finality requirement is not jurisdictional).

“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are ‘substantively identical.’ ” Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D.Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.2003)); see also Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same). “In deciding both types of motions, the Court must accept all factual allegations in the complaint as true, and draw inferences from those allegations in the light most favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at *2 (internal quotation marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1 (D.Vt. June 4, 2012) (same). However, “[o]n a Rule 12(b)(1) motion, ... the party who invokes the Court’s jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule 12(b)(6).” Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F.Supp.3d 340, 352, 2014 WL 2750364, at *10 (E.D.N.Y. June 18, 2014) (“In contrast to the standard for a motion to dismiss for failure to state a claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” (internal quotation marks omitted)). This difference as to the allocation of'the burden of proof is “[t]he only substantive difference” between the standards of review under these two rules. Smith v. St. Luke’s Roosevelt Hosp., No. 08-CV-4710, 2009 WL 2447754, at *9 n. 1Ó (S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL 2878093 (S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.Supp.2d 441, 446 (S.D.N.Y.2009) (same).

The Court will therefore lay out the standards of review applicable to motions brought under both rules, keeping in mind that Plaintiff bears the burden of establishing that it has standing in the context of Defendants’ first argument, but that Defendants likely bear the burden of demonstrating that Plaintiffs APA claims should be dismissed in the context of their second argument.

1. Rule 12(b)(1)

“A federal court has subject matter jurisdiction over a cause of action only when it has authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F.Supp.3d 223, 241, 2014 WL 2475608, at *5 (E.D.N.Y. June 3, 2014) (internal quotation marks omitted) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir.2008), vacated and superseded on reh’g on other grounds, 585 F.3d 559 (2d Cir.2009) (en banc)). “Determining the existence of subject matter jurisdiction is a threshold inquiry, and a claim is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (internal quotation marks omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010); see also N.Y. State Citizens’ Coal. for Children v. Carrion, 31 F.Supp.3d 512, 516, 2014 WL 3545295, at *3 (E.D.N.Y. July 17, 2014) (same). While a district court resolving a motion to dismiss under Rule 12(b)(1) “must take all uncontroverted facts in the complaint ... as true, and draw all reasonable inferences in favor of the party asserting jurisdiction,” “where jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits,” in which case “the party asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.2014) (alterations and internal quotation marks omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F.Supp.3d 689, 696, 2014 WL 3891356, at *5 (S.D.N.Y. Aug. 8, 2014) (“[Wjhere subject matter jurisdiction is contested a district court is permitted to consider evidence outside the pleadings, such as affidavits and exhibits.”).

2. Rule 12(b)(6)

“While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations,- a plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citations, internal quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement.” Id. (internal quotation marks and alterations omitted). Instead, a complaint’s “[factual allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Although “once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint,” id. at 563, 127 S.Ct. 1955, and a plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face,” id. at 570, 127 S.Ct. 1955, if a plaintiff has not “nudged [his or her] claim[ ] across the line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 - (“Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged— but it has not ‘show[n]’ — -‘that the pleader is entitled to relief.’ ” (citation omitted) (second alteration in original) (quoting Fed.R.Civ.P. 8(a)(2))); id. at 678-79, 129 S.Ct. 1937 (“Rule 8 marks a notable and generous departure from the hyper-teehnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”).

“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.2014) (“In addressing the sufficiency of a complaint we accept as true all factual allegations .... ” (internal quotation marks omitted)); Aegis Ins. Servs., Inc. v. 7 World Trade Co., 737 F.3d 166, 176 (2d Cir.2013) (“In reviewing a dismissal pursuant to Rule 12(b)(6), we ... accept all factual allegations in the complaint as true .... ” (internal quotation marks and alterations omitted)). Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court ... draw[s] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F.Supp.2d 302, 304 n. 1 (S.D.N.Y.2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.2012)). Additionally, “[i]n ruling on a 12(b)(6) motion, ... a court may consider the complaint[,] ... any written instrument attached to the complaint as an exhibit!,] or any statements or documents incorporated in it by reference,” as well as “matters of which judicial notice may be taken, and documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Kalyanaram v. Am. Ass’n of Univ. Professors at N.Y. Inst. of Tech., Inc., 742 F.3d 42, 44 n. 1 (2d Cir.2014) (citation, internal quotation marks, and some alterations omitted); see also Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (“In adjudicating a Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.” (internal quotation marks omitted)); Hendrix v. City of New York, No. 12-CV-5011, 2013 WL 6835168, at *2 (E.D.N.Y. Dec. 20, 2013) (same).

B. Analysis

1. Standing.

Defendants’ first argument as to why Plaintiffs Amended Complaint should be dismissed is that Plaintiff lacks standing. (See Defs.’ Mem. 12-17.) “Article III standing ‘is the threshold question in every federal case, determining the power of the court to entertain the suit.’ ” Liberty Mut. Ins. Co. v. Donegan, 746 F.3d 497, 502 n. 2 (2d Cir.2014) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)). “Litigants have Article III standing if they ‘have suffered an injury in fact’ that is ‘fairly ... trace[able] to the challenged action’ and ‘likely ... [to be] redressed by a favorable decision.’ ” United States v. Technodyne, LLC, 753 F.3d 368, 380 (2d Cir.2014) (alterations in original) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

As stated previously, Plaintiff alleges that OCR’s issuance of the Letter of Findings “has caused [Plaintiff] profound embarrassment,” and “has degraded its reputation for being efficient, fair-minded and race-neutral in the performance of its obligations as a school district with a substantially Caucasian student and staff population towards its minority students and their parents, including in its investigation of claims of racial harassment as against African-American students.” (Am. Compl. ¶ 43.) Plaintiff further alleges that the Letter of Findings “was provided to the [c]omplainant by [Defendants],” and that “the substance of the content of the Letter of Findings ... were published in local newspapers and have consequently become a matter of public knowledge in the community served by [Plaintiff] as well as the public in general.” (Id. ¶ 42.) In other words, Plaintiff alleges that OCR’s issuance of the Letter of Findings caused it to suffer a “reputational injury.” (See Pl.’s Mem. in Opp’n to Defs.’ Mot. To Dismiss (“Pl.’s Mem.”) 1 (“The Amended Complaint ... specifically alleges reputational injury flowing directly from the issuance of the Letter of Findings by [Defendants].”); id. át 10 (“[Plaintiff] asserts that the post-Resolution Agreement issuance and publication of the Letter of Findings ... caused [Plaintiff] reputational injury....”).)

Defendants do not take issue with the principle that reputational injury can, in some cases, “constitute a cognizable injury sufficient for Article III standing.” (Defs.’ Mem. 13 (internal quotation marks omitted).) Nor could they — as the Second Circuit has observed, “[t]he Supreme Court has long recognized that an injury to reputation will satisfy the injury element of standing.” Gully v. Nat’l Credit Union Admin. Bd., 341 F.3d 155, 161 (2d Cir.2003) (citing, inter alia, Joint AntiFascist Refugee Comm. v. McGrath, 341 U.S. 123, 139, 71 S.Ct. 624, 95 L.Ed. 817 (1951); Meese v. Keene, 481 U.S. 465, 472-77, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987)); see also Fairfield Cnty. Med. Ass’n v. United Healthcare of New England, 985 F.Supp.2d 262, 268-69 (D.Conn.2013) (recognizing “potential harm to ... reputation ]” as a basis for standing), aff'd as modified sub nom. Fairfield Cnty. Med. Ass’n v. United Healthcare of New Eng., Inc., 557 Fed.Appx. 53 (2d Cir.2014).

Instead, Defendants invoke the doctrine of mootness. “While the standing doctrine evaluates [the litigant’s] personal stake as of the outset of the litigation, the mootness doctrine ensures that the litigant’s interest in the outcome continues to exist throughout the life of the lawsuit .... ” Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir.1993); see also Camreta v. Greene, — U.S. -, 131 S.Ct. 2020, 2028, 179 L.Ed.2d 1118 (2011) (“To ensure a case remains fit for federal-court adjudication, the parties must have the necessary [personal] stake not only at the outset of litigation, but throughout its course.”). Specifically, Defendants argue that, “where reputational injury is the lingering effect of an otherwise moot aspect of a lawsuit, no meaningful relief is possible and the injury cannot satisfy the requirements of Article III.” (Defs.’ Mem. 13 (internal quotation marks omitted).) “Thus, where harm to reputation arises as a byproduct of government action, the reputa-tional injury, without more, will not satisfy Article III standing when that government action itself no longer presents an ongoing controversy.” (Id. (internal quotation marks omitted).)

According to Defendants, “Plaintiffs voluntary entry into and complete compliance with the [Resolution] Agreement renders moot any possible claim based on reputa-tional harm.” (Id. at 16.) “Pursuant to the [Resolution] Agreement, ... [Plaintiff] agreed to conduct an additional investigation into the incident and to review its grievance procedures,” “thus agreeing] to remedy the precise deficiencies identified in the [Letter of Findings].” (Id.) Therefore, Defendants claim, because Plaintiff “voluntarily entered into an agreement that explicitly acknowledged and resolved the same agency compliance concerns that Plaintiff now seeks to challenge,” “[t]his renders moot any controversy based on alleged reputational harm resulting from the Findings Letter.” (Id.) “[T]he agency action at issue here is no longer in effect,” as “Plaintiff is not currently subject to any consent decree provision or other obligation resulting from the [Letter of Findings] or OCR’s investigation.” (Id. at 16-17.)

Defendants principally cite three cases in support of their argument: Aulenback, Inc. v. FHWA 103 F.3d 156 (D.C.Cir.1997); McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C.Cir.2001); and ACORN v. United States, 618 F.3d 125 (2d Cir.2010). However, none of these cases supports Defendants’ position, and each is distinguishable on multiple bases.

In Aulenback, the Federal Highway Administration, acting under the authority of the Secretary of Transportation, issued “out-of-service orders” against two commercial-trucking companies, Aulenback, Inc. (“Aulenback”), and Justin Transportation Co., Inc. (“Justin”), requiring them to cease all interstate-motor-carrier activities. See id. at 158. The FHWA issued those orders pursuant to its statutory authority, which requires the Secretary to “ ‘order a vehicle or employee operating such vehicle out of service, or order an employer to cease all or part of the employer’s commercial motor vehicle operations,’ ” if the Secretary determines that a violation of certain statutory safety provisions and accompanying regulations “ ‘poses an imminent hazard to safety.’ ” Id. at 159 (quoting 49 U.S.C. § 521(b)(5)(A)). The FHWA’s issuance of the orders followed its citation of both companies for numerous violations of federal safety regulations. See id. at 159-61. In addition to the orders themselves, the FHWA also issued news releases describing them, which were picked up by local media. See id. at 159 (“According to Aulenback, the FHWA ... issued a news release describing its action.... [Newspapers in the State of Maine, where Aulenback is based, printed articles stating that the trucking company had been shut down.”); id. at 160 (“In conjunction with the out-of-service order [issued against Justin], the FHWA issued a news release, stating that it had declared Justin’s operations ‘immediately hazardous’ and ‘unfit’ for highway transportation.”).

“Under pressure to get its trucks back on the road, Aulenback began negotiating with the FHWA for a rescission of the out-of-service order.” Id. at 159. Eventually, “[t]he FHWA conditionally rescinded the order ..., and entered into a consent agreement and ordér with Aulenback.” Id. “Pursuant to that agreement and order, Aulenback agreed to comply immediately with applicable federal safety regulations, and to institute specified policies to remedy the violations for which it had been cited,” and further “agreed that violations of the consent order could result in the imposition of civil or criminal penalties authorized by [statute], fines ..., or issuance of an out-of-service order to eliminate an imminent hazard.” Id. “Aulenback [also] waived any right to seek judicial review or otherwise challenge the validity of the consent order.” Id.

As for the out-of-service order issued against Justin, “the FHWA conditionally rescinded [it], premised on a written statement by Justin’s Chief Operations Manager attesting that the company had eliminated the imminent hazards cited in the out-of-service order and based on Justin’s pledge to comply with the terms of an appropriate consent order,” which Justin and the FHWA later executed. Id. at 160. “Like the Aulenback consent order, the Justin consent order required the company to comply with federal safety regulations, and to institute policies to remedy the violations cited in the out-of-service order,” and “provided that any future violation of federal safety regulations or of the terms of the consent order would result in reinst-itution of the out-of-service order, and additional civil penalties.” Id. at 160-61. However, “[u]nlike the Aulenback consent order, the Justin order did not contain a provision stating that the company had waived its right to further review.” Id. at 161.

Despite Aulenback’s and Justin’s entry into their respective consent agreements with the FWHA, both companies later challenged the agency’s action. Specifically, they “contend[ed] that the FHWA lacked authority .to issue the out-of-service orders because they were not premised upon a finding of an imminent hazard to public safety[,] as required” by the applicable statute. Id. at 161. They also “contend[ed] that the FHWA ha[d] established an illegal policy of issuing such orders on the basis of inadequate findings, relying on secret rules in an internal manual that [was] not generally available to the public,” which rules they maintained were “inconsistent with [a] statutory requirement,” and “invalid because they were issued without notice and opportunity for comment as required by the APA.” Id. They sought “a declaratory judgment that the orders were void from the time they were issued,” and an order “enjoin[ing] [the FHWA] from issuing out of-service orders based on [the] procedures” they claimed were deficient. Id.

But the D.C. Circuit “conelude[d] that the [companies’] challenges to [the out-of-service] orders [weré]-moot,” finding that “the consent agreements entered into by Aulenback and Justin with the FHWA effectively settle[d] the controversy relating to [their] issuance.” Id. The court grounded its holding in “the general rule that settlement moots a controversy,” but also considered “whether any exception to [that] general rule ... appliefd].” Id. at 163. It was in this context that the court addressed the issue of reputational harm, in the section of the opinion most relevant to the instant Action:

Although Aulenback and Justin maintain that they continue to suffer the effects of the out-of-service orders, Aulenback by losing customers and Justin by having to halt operations as a result of the increased cost of insurance, any continued injury to their reputations derives largely from the FHWA’s charges of misconduct, which they have acknowledged by acceding to the consent agreements. The carriers offer no reason why, if the rescission of the out-of-ser-viee orders and the entry of consent agreements did not bring back their customers, a declaratory judgment would be likely to do so.

Id. at 163 (citation omitted).

There are undoubtedly superficial similarities between the facts of Aulenback and those of the case before the Court. Like Aulenback and Justin, Plaintiff was the subject of an agency investigation, which investigation resulted in the agency’s determination that Plaintiff was not in compliance with federal law. And like Aulen-back and Justin, Plaintiff entered into an agreement with the agency, through which Plaintiff sought to address the agency’s concerns. But there are also two critical distinctions to be drawn, which render Au-lenback’s holding inapplicable here.

First, in Aulenback, the court based its holding that the settlement, had mooted any controversy, including any controversy caused by the reputational injury that Au-lenback and Justin claimed to have suffered, in part on its finding that the companies had “acknowledged” “the FHWA’s charges of misconduct” “by acceding to the 'consent agreements.” Id. Because neither the court in its decision nor the parties in their briefs reproduced the text of those agreements, it is unclear exactly what the court meant by the use of the word “acknowledged.” There may have been explicit admissions of wrongdoing contained in the consent agreements, in which case the court may have been suggesting that those admissions mooted any claims of reputational injury, the idea being that a party lacks standing to sue on the basis of alleged reputational injury when it has, in effect, admitted that the injury to its reputation was warranted. If the court’s holding was based on such explicit admissions, the case before the Court is easily distinguishable. No such explicit admission appears anywhere in the Resolution Agreement, nor do Defendants claim as much.

Of course, in Aulenback, the companies may not have made any explicit admissions of wrongdoing in the consent agreements, in which case the court may have been suggesting that their mere entry into those agreements constituted implicit admissions of wrongdoing, thereby mooting any claims of reputational injury. In other words, the court may have been suggesting that the companies could not have continued to suffer reputational injury as a result of the FHWA’s charges of misconduct, as they had effectively conceded the truth of those charges by agreeing to take action to remedy them. But this scenario seems speculative. As the Second Circuit has noted, it is a “fact that settlements are often reached for economic reasons and not because of concessions on legal issues.” Sampson v. Radio Corp. of Am., 434 F.2d 315, 317 (2d Cir.1970); cf. Denney v. Deutsche Bank AG, 443 F.3d 253, 274 (2d Cir.2006) (“appreciat[ing] [the defendant’s] argument that payments it may make in settlement do not necessarily signify its concession of its liability,” and noting that “such payments would foreseeably be made ... on account of liability or the risk thereof, including the reputational risk that is often at stake in ... litigation”). The notion that a party’s settlement of a claim does not necessarily constitute an explicit or implicit admission of liability is even built into the Federal Rules of Evidence, in the form of Rule 408, which prohibits the admission of evidence of “furnishing, promising, or offering ... a valuable consideration in compromising or attempting to compromise [a] claim” “to prove or disprove the validity or amount of [the] disputed claim.” Fed.R.Evid. 408(a)(1). Part of the rationale behind this rule is that such “evidence is irrelevant, since [an] offer [of settlement] may be motivated by a desire for peace rather than from any concession of weakness of position.” Fed.R.Evid. 408 advisory committee’s note.

It may be that, even though the Aulen-back court was not taking the position that entry into a consent agreement constitutes an implicit admission of wrongdoing as a general matter, the specific facts of that case suggested that the companies had implicitly admitted their wrongdoing through their conduct. But if this was the basis for the court’s holding, the facts of the instant Action are once again, distinguishable. Based on Plaintiffs Amended Complaint, nothing that Plaintiff did could be construed as any kind of implicit admission. Quite to the contrary, as noted above, Plaintiff took pains to ensure that the following statement was contained in the Resolution Agreement: “The execution of this Resolution Agreement does not constitute an admission that [Plaintiff] has committed any violation of Title VI or its implementing regulations. Nor does execution of this Resolution Agreement constitute any admission of other wrongdoing1 by [Plaintiff].” (Resolution Agreement 3.) There is no indication in Aulenback that the consent agreements described therein contained.a similar clause. Thus, regardless of which facts led the court in Aulen-back to emphasize that the companies had “acknowledged” “the FHWA’s charges of misconduct” “by acceding to the consent agreements” in holding that the companies’ claims of reputational injury had been mooted, Aulenback, 103 F.3d at 163, no comparable facts have been presented here.

Therefore, the mere fact that, by entering into the Resolution Agreement^ Plaintiff “agreed to conduct an additional investigation into the incident and to review its grievance procedures,” “thus agreeing] to remedy the precise deficiencies identified in the [Letter of Findings],” (Defs.’ Mem. 16), is not dispositive as to Plaintiffs standing, as it may have been in Aulen-back. Like many other parties entering into settlement agreements, Plaintiff claims to have done so for reasons unrelated to any desire to concede the illegality of its actions. Indeed, in this case, Plaintiff claims to have done so for the exact opposite reason. According to Plaintiff, it “entered into the ... Resolution Agreement to avoid the issuance of a Letter of Finding [sic] ... which might suggest that there was any merit to the [c]omplainant’s allegations ... or that [Plaintiff] had not taken appropriate action to address the allegations.” (Am. Compl. ¶23; see also id. ¶ 15 (alleging that Plaintiff communicated to Defendants that it “was prepared to enter into a resolution agreement in order to resolve the complaint” “notwithstanding its strong belief that its comprehensive investigation yielded no credible evidence suggesting that the alleged incident occurred”).) Plaintiff does not allege that it entered into the Resolution Agreement to admit that it had broken the law; it alleges that it did so to avoid the appearance that it had.

What is more, Aulenback is also distinguishable for a second and equally important reason. The Aulenback court appears to have understood the companies to be alleging that the reputational injury that they had suffered stemmed from the FHWA’s issuance of the out-of-service Orders. See Aulenback, 103 F.3d at 163 (noting that the companies “maintainfed] that they continue[d] to suffer the effects of the out-of-service orders,” including “continued injury to their reputations”). But by the time the companies had filed their action, those orders had been rescinded, pursuant to the consent agreements described above. See id. at 159-61. Thus, the agency action that was supposedly causing the companies their alleged reputational injury was no longer in effect. This fact seems to have been a driving force behind the court’s decision, and explains its observation that the companies “offer[ed] no reason why, if the rescission of the out-of-service orders and the entry of consent agreements did not bring back their customers, a declaratory judgment would be likely to do so.” Id. at 163.

By contrast, in the instant Action, Plaintiff does not allege that it continues to suffer reputational injury as the result of agency action that is no longer in effect. Although in attempting to analogize this case to Aulenback, Defendants claim that “the agency action at issue here is no longer in effect” because “Plaintiff is not currently subject to any consent decree provision or other obligation resulting from the [Letter of Findings] or OCR’s investigation,” (Defs.’ Mem. 16-17), this characterization of Plaintiffs Amended Complaint misses the mark. The agency action that Plaintiff alleges is the source of its reputational injury is not a consent decree provision or other obligation resulting from the Letter of Findings or OCR’s investigation — it is the issuance of the Letter of Findings itself. (See Am. Compl. ¶ 43 (“The contents and substance of the Letter of Findings is defamatory and has caused [Plaintiff] profound embarrassment, [and] has degraded its reputation for being efficient, fair-minded and race-neutral in the performance of its obligations as a school district with a substantially Caucasian student and staff population toward its minority students and their parents .... ”); Pl.’s Mem. 10 (“[Plaintiff] asserts that the post-Resolution Agreement issuance and publication of the Letter of Findings ... caused [Plaintiff] reputational injury .... ”).) According to Plaintiff, OCR has not rescinded the Letter of Findings to date, (see Am. Compl. ¶ 40), and rescission of the Letter of Findings is the chief form of relief that Plaintiff is currently seeking, (see id. ¶ 50(1)). Thus, for both of these reasons, Aulenback is inapposite, and provides no support for Defendants’ position.

The next case that Defendants cite in arguing that Plaintiffs claim of reputational injury is moot is McBryde v. Committee to Review Circuit Council Conduct & Disability Orders of the Judicial Conference of the United States, 264 F.3d 52 (D.C.Cir.2001). There, the Judicial Council of the Fifth Circuit (“the Judicial Council”), acting under the Judicial Conduct and Disability Act of 1980 (“the JCDA”), 28 U.S.C. §§ 351-64, imposed sanctions on the Honorable John H. McBryde, United States District Judge for the Northern District of Texas (“Judge McBryde”), following a two-year investigation by a Special Committee of the Júdieial Council (“the Special Committee”) into “incidents spanning the entirety of Judge McBryde’s judicial career and involving encounters with judges and lawyers both inside and outside his courtroom.” Id. at 54. The investigation included nine days of hearings, and “culminated in a 159-page report in which the Special Committee concluded that Judge McBryde had engaged for a number of years in a pattern of abusive behavior that was prejudicial to the effective and expeditious administration of the business of the courts.” Id. (alterations and internal quotation marks omitted).

The Special Committee recommended (1) that Judge McBryde “receive a public reprimand”; (2) “that no new cases be assigned to him for a year”; and (3) “that he not be allowed for three years to preside over cases involving any of 23 lawyers who had participated in the investigation.” Id. The Judicial Council subsequently endorsed the Special Committee’s recommendations, issuing an order imposing all of the recommended sanctions. Id. The Committee To Review Circuit Council Conduct and Disability Orders of the Judicial Conference of the United States (“the Review Committee”) substantially affirmed the Judicial Council’s actions. Id. at 55.

Following this affirmance, Judge McBryde brought suit in district court, claiming that the JCDA “violated the due process clause and the Constitution’s separation of powers doctrine,” “that the initiation and conduct of the investigation against him exceeded the authority granted by the [JCDA],” and that the J.CDA’s “restrictions on disclosing the record of the proceedings” violated the First Amendment. Id. “[T]he district court agreed with Judge McBryde’s First Amendment argument, but rejected