ALBINA HEAD START, INC. v. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES et al

Filing 21

MEMORANDUM OPINION denying 7 Plaintiff's Motion for Summary Judgment; granting 8 Defendants' Motion for Summary Judgment; granting 13 Plaintiff's Motion for Leave to File Surreply. See document for details. Signed by Judge Rudolph Contreras on 3/5/2025. (lcrc3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALBINA HEAD START, INC.,
Plaintiff,
v.
U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES, et al.,
Defendants.

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Civil Action No.:

24-2423 (RC)

Re Document Nos.:

7, 8, 13

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 crossmotions 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., 873 F. Supp. 2d 335, 339–40
(D.D.C. 2012), aff’d, 510 F. App’x 1 (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’).”
Id. (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.” 42 U.S.C. § 9883.
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, 873 F. Supp. 2d at
341. 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

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poorly performing grantees by funding new grantees. See U.S. Gov’t Accountability Off., GAO05-176, 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 highquality and comprehensive Head Start program.” Head Start for School Readiness Act of 2007,
Pub. L. No. 110-134 § 7, 121 Stat. 1363, 1379–80 (2007) (codified at 42 U.S.C.
§ 9836(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. Id. (codified at 42 U.S.C. § 9836(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.” 45 C.F.R. § 1304.11(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 [42 U.S.C. § 9833].” Head Start for School
Readiness Act, § 7 (codified at 42 U.S.C. § 9836(c)(7)(A)(i)). In contrast, a Head Start agency

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found “to not be delivering a high-quality and comprehensive Head Start program shall be
subject to an open competition.” Id. (codified at 42 U.S.C. § 9836(c)(7)(A)(ii)); see also 42
U.S.C. § 9836(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.” Id. at 60. Citing the GAO Report, the
Committee found that “limited recompetition of low-performing Head Start agencies will
improve overall program performance.” Id. 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.” Id. at 61.
The Head Start for School Readiness Act of 2007 additionally defined the term
“deficiency.” See § 3(a)(5) (codified at 42 U.S.C. § 9832(2)); see also Camden Cnty. Council on
Econ. Opportunity v. U.S. Dep’t of Health & Hum. Servs., 586 F.3d 992, 994 (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.” 42 U.S.C. § 9832(2). When a grantee fails to correct deficiencies, HHS may

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initiate proceedings to terminate the agency’s designation as a Head Start agency. See id.
§ 9836a(e)(1)(C).
HHS has additionally implemented program performance standards that grantees are
required to meet to operate a Head Start program. See 45 C.F.R. § 1302.1; 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 45 C.F.R. § 1302.90(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.”
Id. § 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, 89 Fed. Reg. 67720, 67813 (Aug. 21,
2024).
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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 45 C.F.R. § 1302.102(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

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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 45 C.F.R. § 1302.90(c); and (3) that HHS’s rules implementing the
designation renewal system stand at odds with the statutory language. Id. ¶¶ 88–102. The
parties cross-moved for summary judgment, see Pl.’s Mot. Summ. J., ECF No. 7; Defs.’ CrossMot. 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.

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Thompson, 269 F.3d 1077, 1083 (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, 916 F. Supp. 2d 141, 145 (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, 456 F. Supp. 3d 81, 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.” 5
U.S.C. § 706(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., 463
U.S. 29, 43 (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, 401 U.S. 402,
416 (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,
579 U.S. 211, 221 (2016).
When considering questions of law, however, courts must “apply[] their own judgment.”
Loper Bright Enters. v. Raimondo, 603 U.S. 369, 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

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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 45 C.F.R. § 1302.90(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, 888 F.3d 1261, 1267 (D.C. Cir. 2018), as the APA only provides for
judicial review of “final agency action for which there is no other adequate remedy,” 5 U.S.C.
§ 704. Final agency action “must mark the ‘consummation’ of the agency’s decisionmaking
process.” Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (quoting Chicago & S. Air Lines, Inc.
v. Waterman S.S. Corp., 333 U.S. 103, 113 (1948)). The action must also “be one by which
‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” Id.
at 178 (quoting Port of Boston Marine Terminal Ass’n. v. Rederiaktiebolaget Transatlantic, 400
U.S. 62, 71 (1970)).

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HHS argues that the competition letter is not the “consummation” of HHS’s decisionmaking 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 85 Fed. Reg. 53189, 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, 456 F.3d 178, 183 (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

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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 45 C.F.R. § 1302.90(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”).
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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.” Id. at 16. This amounts to an unlawful “strict
liability standard” in Albina’s view. Id. at 19. 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, 905 F. Supp. 2d 174, 187 (D.D.C. 2012) (citing Akers
v. Beal Bank, 760 F. Supp. 2d 1, 2 (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, 2022 WL 888180, at *3 n.2 (D.D.C.
Mar. 25, 2022) (citing Glass v. Lahood, 786 F. Supp. 2d 189, 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.
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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 45 C.F.R. § 1302.90(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.”
42 U.S.C. § 9832(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,” 42 U.S.C. § 9832(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, 873 F. Supp. 2d at 354; 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., 527 U.S. 471, 491 (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

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common law.” Pl.’s Mot. at 16. Congress generally expects that statutes will import commonlaw principles unless the statute indicates otherwise, Albina asserts, and agency law principles
present no exception. See id. (citing United States v. Texas, 507 U.S. 529, 534 (1993); United
States v. Wells, 519 U.S. 482, 491 (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.” Id. 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 Id. 4
The problem, however, is that 42 U.S.C. § 9832(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.

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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, 434 A.2d 404, 409
(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, 821 F. Supp. 2d 384, 388 (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., 782 A.2d 752, 758 (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., 128 F.
Supp. 3d 222, 234 (D.D.C. 2015) (quoting Hechinger Co. v. Johnson, 761 A.2d 15, 25 (D.C.
2000), or was motivated, “at least in part, by a desire to serve” the employer’s interest. Brown v.
Argenbright Sec., Inc., 782 A.2d 752, 758 (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.

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See United States v. Honeywell Int’l Inc., 47 F.4th 805, 814 (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, 838
F.2d 1280, 1283 (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 id. In addition,
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (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.” Id. at 754; 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. 42
U.S.C. § 9832(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. 42 U.S.C. § 9832(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

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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,” 42 U.S.C.
§ 9832(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.” 45 C.F.R.
§ 1302.90(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 45 C.F.R. § 1302.90(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.

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§ 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, 588 U.S. 558, 581 (2019). “[A] court must apply all traditional methods of interpretation
to any rule, and must enforce the plain meaning those methods uncover.” Id. “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, 28 F.4th
1306, 1311 (D.C. Cir. 2022) (quoting Kisor, 588 U.S. at 575). “The interpretation must be the
agency’s ‘authoritative’ or ‘official position,’ ‘implicate its substantive expertise’ and reflect
‘fair and considered judgment’ to receive deference.” Id. (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. 45 C.F.R. § 1302.90(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.” Id. § 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.

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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 45 C.F.R.
§ 1302.90(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 45 C.F.R. § 1302.90(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.” 45 C.F.R. § 1302.90(c)(2). Albina states that this provision “vest[s] authority to
enforce the standards of conduct contained within 45 C.F.R. § 1302.90(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.” Id. at 14. 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

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staff.” 45 C.F.R. § 1302.90(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,” 42 U.S.C. § 9832(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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