UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALBINA HEAD START, INC., : : Plaintiff, : Civil Action No.: 24-2423 (RC) : v. : Re Document Nos.: 7, 8, 13 : U.S. DEPARTMENT OF HEALTH : AND HUMAN SERVICES, et al., : : Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Albina Head Start, Inc. is a Head Start agency that receives federal funding to

provide early education services to approximately 1,150 children and expectant families in

Portland, Oregon. In 2024, the Department of Health and Human Services (“HHS”) determined

that Albina had two deficiencies in its Head Start programs arising from teachers lacking

necessary credentials and an incident in which a teaching assistant threw a wooden block at a

child. Under HHS regulations, these two deficiencies during the relevant five-year funding

period subjected Albina to an open competition for its next five years of funding rather than

automatic renewal.

After receiving notice of this open competition, Albina sued HHS under the

Administrative Procedure Act (“APA”), contending that HHS’s decision was arbitrary,

capricious, and not in accordance with law because it violated the Improving Head Start for

School Readiness Act of 2007 and the agency’s regulations regarding grantees’ personnel policies. Specifically, Albina contends that the Act’s definition of “deficiency” does not allow

HHS to attribute the isolated actions of a rogue employee to the Head Start agency. Albina also

argues that it cannot be found deficient because it followed HHS regulations requiring Head Start

agencies to penalize staff who violate standards of conduct, and Albina immediately dismissed

the teaching assistant and reported the incident to appropriate authorities. Following cross-

motions for summary judgment, the Court concludes that Albina has not established that HHS

violated the Act or its own regulations by finding a deficiency based on an incident in which a

teaching assistant engaged in physical abuse of a child. The Court thus grants summary

judgment to HHS and denies Albina’s cross-motion for summary judgment.

II. BACKGROUND

A. Statutory and Regulatory Background

“Established in 1965, the Head Start program awards grants to local agencies—public,

non-profit, and for-profit—to provide ‘comprehensive child development services,’ with an

emphasis on enabling preschool children to develop skills necessary to succeed in school.” Ohio

Head Start Ass’n, Inc. v. U.S. Dep’t of Health & Hum. Servs.,

, 339–40

(D.D.C. 2012), aff’d,

(D.C. Cir. 2013). “Congress expanded the program in 1995

to include services for pregnant women and children under the age of three (‘Early Head Start’).”

(citing Head Start Act Amendments of 1994, 42 U.S.C. § 9840a (2007)). Head Start agencies

are generally designated “for a period of 5 years.”

.

Before 2007, Head Start agencies were generally not required to compete for renewed

funding after HHS awarded them a federal grant. See Ohio Head Start Ass’n,

. In 2005, the Government Accountability Office released a report indicating that many Head

Start agencies demonstrated poor performance, and that HHS rarely used its authority to replace

2 poorly performing grantees by funding new grantees. See U.S. Gov’t Accountability Off., GAO-

05-176, Head Start: Comprehensive Approach to Identifying and Addressing Risks Could Help

Prevent Grantee Financial Management Weaknesses 27–31 (2005) (“GAO Report”). The Office

of Head Start (“the Office”) “continue[d] to fund a grantee—even a deficient grantee—until the

grantee either relinquishe[d] the grant or the grantee [was] terminated.” Id. at 27. The GAO

Report observed that “[b]oth termination and negotiations toward relinquishment” of the grant

could “be protracted.” Id. at 28. The report concluded that “[c]ompetition for grants might

create a stronger incentive for those grantees that are not performing up to standards to correct

their problems.” Id. at 31.

Congress responded by introducing a “Designation Renewal System” in the Head Start

for School Readiness Act of 2007, instructing the Secretary of Health and Human Services to

develop a system to determine whether a Head Start grantee was “successfully delivering a high-

quality and comprehensive Head Start program.” Head Start for School Readiness Act of 2007,

,

, 1379–80 (2007) (codified at

(c)(6)(A)). The Secretary was required to convene an expert panel to “provide[]

recommendations on the proposed system for designation renewal that takes into account”

various criteria.

(codified at

(c)(4)). The Secretary has since promulgated

regulations establishing seven conditions under which a Head Start agency will be required to

compete for its next five years of funding, including when the Head Start agency “has two or

more deficiencies.”

(a). A Head Start agency found “to be delivering a

high-quality and comprehensive Head Start program shall be designated . . . as a Head Start

agency for the period of 5 years described in [

].” Head Start for School

Readiness Act, § 7 (codified at

(c)(7)(A)(i)). In contrast, a Head Start agency

3 found “to not be delivering a high-quality and comprehensive Head Start program shall be

subject to an open competition.”

(codified at

(c)(7)(A)(ii)); see also

(d) (establishing considerations for designation of a Head Start agency through

competition).

Although not legally binding, the accompanying legislative report from the then-titled

House Committee on Education and Labor provides some context for these changes. See H.R.

Rep. No. 110-67 (2007). The Committee expressed its belief that “most Head Start programs run

high-quality early education programs with sound fiscal management,” but that the Act “takes a

number of steps to improve Head Start accountability.”

. Citing the GAO Report, the

Committee found that “limited recompetition of low-performing Head Start agencies will

improve overall program performance.”

The Committee, however, did not see value in

recompetition of “high-quality grantees,” commenting that the new “provisions are not intended

to give the Secretary discretion to re-compete the majority of Head Start programs as the

Committee strongly believes this would undermine overall program quality.”

.

The Head Start for School Readiness Act of 2007 additionally defined the term

“deficiency.” See § 3(a)(5) (codified at

(2)); see also Camden Cnty. Council on

Econ. Opportunity v. U.S. Dep’t of Health & Hum. Servs.,

(D.C. Cir. 2009)

(observing that the Head Start Act previously “did not define the term ‘deficiency’”); 42 U.S.C.

§ 9836a(e) (providing framework for correction of deficiencies). A deficiency occurs when a

Head Start agency suffers “a systemic or substantial material failure . . . in an area of

performance that the Secretary determines involves” any of six specific factors, such as “a threat

to the health, safety, or civil rights of children or staff” or “the misuse of funds received under

this subchapter.”

(2). When a grantee fails to correct deficiencies, HHS may

4 initiate proceedings to terminate the agency’s designation as a Head Start agency. See

§ 9836a(e)(1)(C).

HHS has additionally implemented program performance standards that grantees are

required to meet to operate a Head Start program. See

; see also 42 U.S.C.

§ 9836a(a)(1)(E) (empowering the Secretary to promulgate regulations establishing performance

standards for Head Start agencies and programs). Among other requirements, those standards

dictate that a Head Start program must establish written personnel policies and procedures,

including standards of conduct. See

(a), (c). At the time of the relevant

events in this lawsuit, the regulation stated that “[a] program must ensure all staff, consultants,

contractors, and volunteers abide by the program’s standards of conduct” that “[e]nsure staff,

consultants, contractors, and volunteers do not maltreat or endanger the health or safety of

children, including, at a minimum, that staff must not . . . [p]hysically abuse a child.”

§ 1302.90(c) (effective from Nov. 7, 2016, to Aug. 20, 2024). 1

B. Factual Background

The facts of this case are not disputed. Albina is a Head Start agency that receives

federal funding to provide early education services to approximately 1,150 children and

expectant families in Portland, Oregon. AR 003128. The organization has been in operation for

approximately 60 years. Id.

In January 2023, following a regular monitoring review, HHS’s Office of Head Start

informed Albina that it believed some of the Head Start agency’s staff members lacked the

necessary qualifications to provide direct services to children and families participating in Early

1 HHS has since revised the relevant language in the regulation. See Supporting the Head Start Workforce and Consistent Quality Programming,

, 67813 (Aug. 21, 2024).

5 Head Start programs. AR 003130; see also 42 U.S.C. § 9840a(h) (requiring such staff to “have a

minimum of a child development associate credential, and have been trained (or have equivalent

coursework) in early childhood development”). The Office provided Albina 120 days to correct

the issue. See AR 003130. After a follow up review, the Office determined in July 2023 that

Albina had not corrected the area of noncompliance and concluded that the Head Start agency

had “at least one area of deficiency in its Head Start and Early Head Start programs.” AR

003136. Albina contested this finding, arguing that the deficiency was unwarranted because it

was based on a limited number of staff with expired education waivers, because the effects of the

COVID-19 pandemic continued to challenge staff, and because Albina prioritized hiring and

training staff within the local community while they pursued the necessary education. See AR

003141–43. The Office declined to revisit its deficiency finding. See AR 003148, 003152.

Albina does not dispute the validity of this first deficiency in this lawsuit.

In November 2023, a teacher assistant at an Albina facility “threw a block at a 5-year-old

child” during scheduled naptime, “causing injury,” before “repeating ‘Shut up’ and ‘Go to sleep’

while walking away from the child.” AR 003009. Albina staff reviewed the classroom tape,

immediately terminated the teacher assistant, and reported the incident to Oregon state

authorities on the same day. Id. Albina reported the incident to the Office of Head Start on the

following day. Id.; see also

(d)(1)(ii) (requiring Head Start programs to

immediately report health and safety incidents to HHS officials). The Office found a deficiency

because “[t]he grant recipient did not ensure all staff refrained from using unacceptable

discipline methods with children; therefore, it was not in compliance with the regulation”

regarding standards of conduct. AR 003009. In response to the incident, Albina introduced a

five-week new hire orientation, added additional in-service training days, enhanced training

6 monitoring, revised the timing of staff breaks, and increased monitoring of new hires to identify

potential issues. See AR 003012–16; AR 003017–20. A follow-up monitoring review indicated

that Albina had corrected the deficiency. AR 003017–20.

On February 29, 2024, the Office of Head Start notified Albina that it was required to

compete for its next five years of funding because it was determined to have two or more

deficiencies over the five-year project period. See AR 003153 (citing the deficiency for staff

qualifications and the deficiency for personnel policies related to the incident of physical abuse).

The notice stated that Albina would “continue to receive grant funding until such competition

has concluded.” AR 003154.

Albina filed this lawsuit on August 21, 2024, challenging the second deficiency finding

that triggered the competition letter. See generally Compl., ECF No. 1. Albina contended (1)

that HHS’s definition of “deficiency” contravenes the text of the Head Start for School

Readiness Act of 2007; (2) that HHS’s deficiency determination contradicts its personnel policy

regulations found in

(c); and (3) that HHS’s rules implementing the

designation renewal system stand at odds with the statutory language.

¶¶ 88–102. The

parties cross-moved for summary judgment, see Pl.’s Mot. Summ. J., ECF No. 7; Defs.’ Cross-

Mot. Summ. J. and Opp’n to Pl.s’ Mot. Summ. J., ECF No. 8, and those motions are ripe for

review.

III. LEGAL STANDARD

In a typical case, a court may grant summary judgment to a movant who “shows that

there is no genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a). But when assessing administrative action, at the summary

judgment stage “the district judge sits as an appellate tribunal,” Am. Bioscience, Inc. v.

7 Thompson,

(D.C. Cir. 2001), limited to determining whether, as a matter of

law, the evidence in the administrative record supports the agency’s decision, Citizens for Resp.

& Ethics in Wash. v. SEC,

(D.D.C. 2013). “In the APA context,

summary judgment is the mechanism for deciding whether, as a matter of law, an agency action

is supported by the administrative record and is otherwise consistent with the APA standard of

review.” Gulf Restoration Network v. Bernhardt,

, 93 (D.D.C. 2020).

Under Section 706(2)(A) of the APA, a reviewing court may set aside agency action if it

is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

(2)(A). Agency action is “arbitrary and capricious if the agency has relied on

factors which Congress has not intended it to consider, entirely failed to consider an important

aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not be ascribed to a difference in view or the

product of agency expertise.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co.,

(1983). “Although this inquiry into the facts is to be searching and careful, the

ultimate standard of review is a narrow one. The court is not empowered to substitute its

judgment for that of the agency.” Citizens to Pres. Overton Park Inc. v. Volpe,

(1971). Moreover, a change in policy or decision is arbitrary and capricious if the agency

fails to “provide a reasoned explanation for the change.” Encino Motorcars, LLC v. Navarro,

(2016).

When considering questions of law, however, courts must “apply[] their own judgment.”

Loper Bright Enters. v. Raimondo,

, 392 (2024). The APA “specifies that courts,

not agencies, will decide ‘all relevant questions of law’ arising on review of agency action—

even those involving ambiguous laws—and set aside any such action inconsistent with the law as

8 they interpret it.” Id. (emphasis omitted) (citation omitted). The APA thus “prescribes no

deferential standard for courts to employ in answering those legal questions.” Id.

IV. ANALYSIS

Albina levies two main legal attacks on HHS’s actions. Albina first argues that the

Office of Head Start’s deficiency determination was contrary to law because the Head Start for

School Readiness Act of 2007 defines a “deficiency” as a failure of a Head Start agency, and that

a rogue employee does not act on the agency’s behalf. See Mem. in Supp. of Pl.’s Mot. Summ.

J. (“Pl.’s Mot.”) at 15–19, ECF No. 7-1. Albina next asserts that the deficiency determination

was contrary to the language of

(c), arguing that the regulation delegates to

the Head Start agency the duty of enforcing standards of conduct, and Albina terminated the

relevant employee here. See Pl.’s Mot. at 19–21. The Court considers each of these arguments

and concludes that neither is persuasive.

As an initial matter, HHS contends that Albina fails to challenge final agency action. The

APA provides a cause of action solely to challenge final agency action, see Soundboard Ass’n v.

Fed. Trade Comm’n,

(D.C. Cir. 2018), as the APA only provides for

judicial review of “final agency action for which there is no other adequate remedy,”

. Final agency action “must mark the ‘consummation’ of the agency’s decisionmaking

process.” Bennett v. Spear,

, 177–78 (1997) (quoting Chicago & S. Air Lines, Inc.

v. Waterman S.S. Corp.,

(1948)). The action must also “be one by which

‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’”

at 178 (quoting Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic,

(1970)).

9 HHS argues that the competition letter is not the “consummation” of HHS’s decision-

making process regarding grant funding, and immediate “legal consequences” do not flow from

Albina’s obligation to compete. Mem. in Supp. of Defs.’ Cross-Mot. Summ. J. at 16–20 (“Defs.’

Mot.”), ECF No. 8-1. Albina responds that HHS’s deficiency determination was final and

triggered its requirement to compete, and that the deficiency determination begets legal

consequences because Albina is no longer entitled to automatic renewal of funding. Pl.’s Opp’n

to Defs.’ Cross-Mot. Summ. J. and Reply in Supp. of Mot. Summ. J. (“Pl.’s Opp’n”) at 3–12,

ECF No. 11. HHS has expressly declined to establish a mechanism for grantees to appeal

competition letters, see Head Start Designation Renewal System

, 53193

(Aug. 28, 2020), meaning that the decision that Albina has a second deficiency and must

compete likely represents the “consummation” of the agency’s decision-making process in that

regard. Yet it is less clear whether Albina has already suffered legal consequences, as its funding

purportedly persists until the competition is concluded, AR 003154, and it has not yet been

denied further funding. 2 The Court need not resolve this issue, however, because Albina’s

challenge ultimately fails on other grounds, and the existence of final agency action is not

jurisdictional in nature. See Trudeau v. Fed. Trade Comm’n,

(D.C. Cir.

2006).

In addition, HHS points out that it moved for summary judgment on Count Three of the

Complaint challenging the agency’s designation renewal rule, see Defs.’ Mot. at 13–16, and that

Albina conceded that issue by declining to respond to it, see Defs.’ Reply at 1, ECF No. 12; see

2 Had Albina received the competition letter after August 21, 2024, it likely would have suffered immediate legal consequences because it would be ineligible for a waiver of certain requirements regarding staff wages. See

(e)(8)(ii)(B) (prohibiting the Secretary from granting a wage waiver if the Head Start program has “been designated to compete under the Designation Renewal System after August 21, 2024”).

10 also Pl.’s Opp’n. The Court agrees and thus grants HHS summary judgment on Count Three of

the Complaint. The Court notes, however, that the legal challenge within Count Three is quite

similar to that within Count One, as both counts challenge HHS’s interpretation of the word

“deficiency” to include a single incident involving a staff member acting contrary to the

requirements of his employment. Compare Compl. ¶¶ 88–91, with Compl. ¶¶ 99–102. 3

Accordingly, dismissal of Count Three has minimal impact on the ultimate outcome of the case

on the merits.

A. Definition of Deficiency as “Failure of an Agency”

Albina argues that HHS’s interpretation of the word “deficiency” contravenes the Head

Start for School Readiness Act of 2007 by faulting the Head Start agency for the actions of a

single employee acting against his training and the wishes of his employer. See Pl.’s Mot. at 15–

19. Albina asserts that Congress intended to import the common law into the statute, such that

“a ‘deficiency’ must be the result of acts or omissions for which the local Head Start grantee

could be held responsible at common law.”

. This amounts to an unlawful “strict

liability standard” in Albina’s view.

. HHS responds that it did not impose vicarious

3 Albina also seeks leave to file a surreply. Pl.’s Mot. Leave File Surreply, ECF No. 13. HHS opposes the motion. Defs.’ Mem. Opp’n Pl.’s Mot. Leave File Surreply, ECF No. 16. The decision to grant or deny leave to file a surreply “is entrusted to the sound discretion of the district court.” Banner Health v. Sebelius,

(D.D.C. 2012) (citing Akers v. Beal Bank,

(D.D.C. 2011)). “A court determining whether to allow a surreply considers whether the reply raises new arguments, whether the proposed surreply would be helpful to the resolution of the pending motion, and whether the other party would be unduly prejudiced.” Jackson v. Starbucks Corp., No. 19-cv-1487,

, at *3 n.2 (D.D.C. Mar. 25, 2022) (citing Glass v. Lahood,

, 230–31 (D.D.C. 2011)). Here, HHS’s reply brief does not raise new arguments, and the proposed surreply is generally not helpful—it largely rephrases points already made in Albina’s previous briefing. But, because HHS will not be prejudiced were leave to file granted, the Court grants Albina leave to file its proposed surreply.

11 liability on Albina, but rather found that Albina violated regulatory provisions requiring it to

ensure that staff members do not engage in physically abusive behavior. See Defs.’ Mot. at 24–

25 (citing

(c)(1)(ii)(G)). The Court concludes that Albina has not

established that HHS erroneously applied the statutory definition of “deficiency” here.

Recall that Congress defined “deficiency” to mean “a systemic or substantial material

failure of an agency in an area of performance that the Secretary determines involves” certain

categories of issues, including “a threat to the health, safety, or civil rights of children or staff.”

(2)(A). To prevail, Albina would need to demonstrate that an incident in which

an Albina employee struck a child during scheduled naptime before telling the child to “Shut up”

and “Go to sleep,” AR 003009, does not represent a “substantial material failure of [the] agency”

involving “a threat to the health [or] safety . . . of children or staff,”

(2)(A).

This is a tall order. For one thing, Congress understood that a single incident could trigger a

deficiency finding, as “the statutory definition of a ‘deficiency,’ . . . includes either ‘systemic’ or

‘substantial’ material failures.” Ohio Head Start Ass’n,

; see also Pl.’s

Mot. at 1, 7 (emphasizing that the abuse represented an “isolated incident”). Although the statute

does not further define “substantial,” the word “suggests ‘considerable’ or ‘specified to a large

degree.’” Sutton v. United Air Lines, Inc.,

(1999); see also Substantial, Sense

I.4.a., Oxford English Dictionary (2024) (“of real significance, weighty”). The Court simply

cannot agree that HHS erred by finding this incident of physical abuse to be a considerable or

weighty material failure related to the health and safety of a child.

Albina argues that a deficiency only exists when the systemic or substantial material

failure is of “an agency,” and that “the Head Start Act means that a ‘deficiency’ must be the

result of acts or omissions for which the local Head Start grantee could be held responsible at

12 common law.” Pl.’s Mot. at 16. Congress generally expects that statutes will import common-

law principles unless the statute indicates otherwise, Albina asserts, and agency law principles

present no exception. See

(citing United States v. Texas,

(1993); United

States v. Wells,

(1997)). “At common law,” Albina continues, “an employer

is not liable for the actions of its employees if the employee’s conduct is contrary to the

employer’s purpose as expressed through its policies, training, supervision, and disciplinary

measures.”

Albina concludes that because the teacher assistant acted contrary to the

employer’s purpose, it would not be “liable” for his conduct at common law. See

4

The problem, however, is that

(2) is a statutory definition to be

consulted throughout a particular subchapter of Title 42, and not a tort or damages cause of

action with a common law analogue. As HHS argues, “[t]he issue of whether the Head Start Act

allows the Office to impose either strict or vicarious liability is irrelevant because the Office

imposed neither kind of liability on Plaintiff.” Defs.’ Reply at 8. The statute does not render

anyone “liable” or include any other term of art that might require resort to the common law.

4 Albina’s preferred scope of common law vicarious liability is too narrow, as several courts applying District of Columbia law have found that employers could be liable for far more egregious conduct than that at issue here. See, e.g., Johnson v. Weinberg,

(D.C. 1981) (holding that a reasonable jury could conclude that laundromat employee’s shooting of a complaining customer “arose out of and was related to” the shooter’s “employment”); Doe v. Sipper,

(D.D.C. 2011) (explaining that “[t]he District of Columbia . . . does not subscribe to the blanket proposition that sexual assaults never come within the scope of employment”); Brown v. Argenbright Sec., Inc.,

(D.C. 2001) (holding similarly). The key question is not the severity of the defendant-employee’s actions, but rather whether the injury “grew out of a job-related controversy,” Search v. Uber Techs., Inc.,

(D.D.C. 2015) (quoting Hechinger Co. v. Johnson,

(D.C. 2000), or was motivated, “at least in part, by a desire to serve” the employer’s interest. Brown v. Argenbright Sec., Inc.,

(D.C. 2001). Here, it would be reasonable to conclude that the teacher assistant’s treatment of the child was motivated, at least in part, by a desire to serve the employer’s interest in effectively controlling students.

13 See United States v. Honeywell Int’l Inc.,

(D.C. Cir. 2022) (“presum[ing]

statutory torts share fundamental attributes of common law torts when they incorporate

traditional tort terms of art” (emphasis added)). Albina’s cases limiting the scope of damages or

tort liability are thus inapposite here. Albina cites, for instance, Nelson v. United States,

(D.C. Cir. 1988), a case about the Federal Tort Claims Act. See Pl.’s Mot. at

16. Albina also appeals to several restatements, which discuss tort liability. See

In addition,

Burlington Indus., Inc. v. Ellerth,

(1998), interpreted Title VII’s damages provision

and relied on Congress’s “express” direction for “federal courts to interpret Title VII based on

agency principles.”

; see also Pl.’s Mot. at 16–17. These cases do not support Albina’s

position that the statutory definition here must be interpreted in terms of common law vicarious

and strict liability.

Albina’s reading would also all but nullify the statute. It is not often that an employee

becomes “a threat to the health, safety, or civil rights of children or staff” to further a Head Start

agency’s interest or purpose, particularly given that doing so may trigger a competition letter.

(2)(A)(i). Nor does an employee usually misappropriate an employer’s federal

grant funding, render the agency financially unviable, or lose its permits in the interest of the

employer.

(2)(A)(iv), (v) (defining other deficiencies). At least under Albina’s

construction of agency law, these actions would seldom be attributable to the Head Start agency,

and HHS would be unable to find deficiencies simply because an employee did not act in

accordance with the Head Start agency’s policies. So too would HHS be most constrained from

finding grantees deficient in the most egregious cases, a paradoxical outcome.

Albina’s reading of the statute, which would require any harms to arise from a Head Start

agency’s agent, also excludes numerous failures the statutory provision was likely intended to

14 include. If the Head Start agency does not commit a substantial material failure when a rogue

employee represents “a threat to the health, safety, or civil rights of children or staff,”

(2)(A)(i), then it stands to reason that a Head Start agency could not accrue a deficiency

by failing to protect children from non-employees or environmental hazards, as these dangers

would not be agents of the grantee. That certainly cannot be true. The text and structure of the

statute indicate that Congress likely intended Head Start agencies to be responsible for

deficiencies in the listed areas of performance regardless of the cause.

Here, HHS found a deficiency flowing directly from Albina’s actions or omissions,

namely the failure to ensure that employees do not “[p]hysically abuse a child.”

(c)(1)(ii). Albina does not challenge HHS’s authority to promulgate that personnel

regulation, and it does not argue that the incident was not a substantial material failure in an area

of performance involving a threat to a child. Because Albina does not establish that it was not

responsible for the failure, the Court concludes that HHS properly found a deficiency following

the incident involving physical abuse of a child. As such, HHS is entitled to summary judgment

on Count One of the Complaint, and Albina’s motion for summary judgment is denied in that

respect.

B. Deficiency Determination as Contrary to

(c)

Albina next argues that the deficiency determination was contrary to HHS’s own

regulations setting out required personnel policies and procedures, and that Albina had those

policies and enforced them here. See Pl.’s Mot. at 19–21. HHS argues that “[t]he regulation’s

plain language did not merely require Plaintiff to have standards of conduct in place, but rather,

imposed on Plaintiff the duty to actually ‘ensure all staff, consultants, contractors, and volunteers

abide by the program’s standards of conduct.’” Defs.’ Mot. at 27 (quoting 45 C.F.R.

15 § 1302.90(c)(1)). The Court agrees with HHS that the regulation’s plain meaning requires a

Head Start program to actually prevent staff from engaging in corporal punishment or physically

abusive behavior.

“[C]ourts exercise independent review over the meaning of agency rules.” Kisor v.

Wilkie,

(2019). “[A] court must apply all traditional methods of interpretation

to any rule, and must enforce the plain meaning those methods uncover.”

“Courts defer to an

agency’s interpretation of its own regulation if the regulation in question is ‘genuinely

ambiguous’ and if the agency’s reading is reasonable.” Doe v. Sec. & Exch. Comm’n,

(D.C. Cir. 2022) (quoting Kisor,

). “The interpretation must be the

agency’s ‘authoritative’ or ‘official position,’ ‘implicate its substantive expertise’ and reflect

‘fair and considered judgment’ to receive deference.”

(quoting Kisor, 588 U.S. at 576–80).

Under the plain meaning of the relevant regulation at the time of the events at issue,

Albina failed to establish standards of conduct that ensured staff did not maltreat or endanger the

health or safety of children. The regulation required a Head Start program to “[e]nsure” that this

conduct does not occur, not merely deter it.

(c)(1) (effective from Nov. 7,

2016, to Aug. 20, 2024). It provided that the standards of conduct must “[e]nsure staff . . . do not

maltreat or endanger the health or safety of children.”

§ 1302.90(c)(1)(ii). It also dictated

that “staff must not . . . [u]se corporal punishment” or “[p]hysically abuse a child.” Id. A plain

reading of the regulation’s text reveals that it is not satisfied merely by the creation of standards

of conduct, but rather by their effective implementation in a manner that prevents mistreatment

of children. By failing to ensure that physical abuse of a child did not occur, Albina fell out of

compliance with the regulation.

16 Albina asserts that this reading of the rule contradicts HHS’s own explanation of the

regulation. See Pl.’s Mot. at 20 (citing Head Start Performance Standards, 81 Fed Reg. 61294,

61351 (Sept. 6, 2016)). That explanation stated that “the local Head Start grantee would be

responsible for enforcement of its own Standards of Conduct,” according to Albina. Id. The

relevant discussion in the Federal Register indicates that HHS “expect[ed] programs to designate

staff that will determine appropriate penalties” and that “local programs are best suited to

determine who that staff should be.” Head Start Performance Standards, 81 Fed Reg. 61294,

61351 (Sept. 6, 2016); see also Pl.’s Opp’n at 13–14 (quoting the relevant text). No part of that

explanation supports Albina’s position that a Head Start program can comply with

(c)(1) when it fails to actually prevent staff members from physically abusing a child.

Albina additionally argues that HHS’s reading of the regulation renders another portion

superfluous. See Pl.’s Mot. at 20–21 (citing

(c)(2)). That provision—which

remains unchanged since the relevant events—dictates that “[p]ersonnel policies and procedures

must include appropriate penalties for staff, consultants, and volunteers who violate the standards

of conduct.”

(c)(2). Albina states that this provision “vest[s] authority to

enforce the standards of conduct contained within

(c)(1) with the local Head

Start grantee, and not HHS.” Pl.’s Opp’n at 13. Because HHS issued the deficiency

determination, “HHS took this responsibility away from Albina.”

. Yet a plain reading

of the regulation shows that a Head Start program must comply with both the (c)(1) and (c)(2)

provisions—the program must “ensure” that staff do not engage in prohibited behavior and enact

appropriate penalties for individuals who violate standards of conduct. See Defs.’ Mot. at 28.

Albina’s reading of the regulation would wholly exempt a program from ensuring the health and

safety of children so long as its “policies and procedures . . . include appropriate penalties for

17 staff.”

(c)(2). There is no basis, however, to read the regulation in that

manner. There is also no basis to believe that HHS intended to withdraw its own ability to

identify a deficiency when a Head Start agency fails to effectively protect a child’s health and

safety. Doing so would likely contravene HHS’s statutory obligations to identify and correct

deficiencies, see 42 U.S.C. § 9836a(e), which include “threat[s] to the health, safety, or civil

rights of children or staff,”

(2)(A)(i). For these reasons, the Court grants HHS

summary judgment on Count Two of the Complaint and denies Albina’s motion for summary

judgment as to that count.

V. CONCLUSION

For the foregoing reasons, HHS’s Motion for Summary Judgment is GRANTED, and

Albina’s Motion for Summary Judgment is DENIED. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: March 5, 2025 RUDOLPH CONTRERAS United States District Judge

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