National University of Health v. Council on Chiropractic Edu. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL UNIVERSITY OF HEALTH No. 19-15352
SCIENCES,
D.C. No. 2:18-cv-01560-NVW
Plaintiff-Appellant,
v. MEMORANDUM*
COUNCIL ON CHIROPRACTIC
EDUCATION, INC.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted July 8, 2020
Portland, Oregon
Before: M. MURPHY,** BENNETT, and MILLER, Circuit Judges.
Defendant, the Council on Chiropractic Education, Inc. (“CCE”),
accredits chiropractic doctoral degree programs in the United States.
Plaintiff, National University of Health Sciences (“NUHS”), runs a program
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
accredited by CCE. When NUHS sought reaffirmation of its accreditation,
CCE concluded NUHS was not fully compliant with all accreditation
standards but, nonetheless, reaffirmed its accreditation. At the same time,
however, CCE notified NUHS it was placing its program on probation. 1
After NUHS’s appeal of the probation decision was denied by the CCE
appeals panel, NUHS filed a complaint in federal court raising common law
due process claims and seeking injunctive and declaratory relief. The
district court denied relief and this appeal followed. Both parties proceed
under the assumption that NUHS can bring a common law due process claim
in this circuit and that the arbitrary and capricious standard is a pplicable to
such a claim. See Prof’l Massage Training Ctr., Inc. v. Accreditation All. of
Career Schs. & Colls., 781 F.3d 161, 172 (4th Cir. 2015) (holding a
common law due process claim against an accrediting agency is cognizable
and involves an inquiry into “whether the accrediting body’s internal rules
provided a fair and impartial procedure and whether it followed its rules in
reaching its decision” (internal quotation marks and alternations omitted)).
1
On January 29, 2019, CCE removed the sanction of probation based
on its review and evaluation of the progress NUHS made in the areas
previously identified as noncompliant. Accordingly, this appeal is moot as
to all of NUHS’s claims for injunctive relief from the imposition of
probation.
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We express no opinion on the validity of common law due process claims
challenging decisions relating to accreditation. Our jurisdiction arises under
28 U.S.C. § 1291, and we affirm in part and dismiss in part.
1. To maintain recognition by the Secretary of Education, an
accrediting agency must comply with 20 U.S.C. § 1099b. See also 34
C.F.R. Part 602. The statute, inter alia, requires the agency to consistently
and evenhandedly apply and enforce standards of accreditation and afford
due process to the programs it accredits. 20 U.S.C. § 1099b(a)(4)(A),
(a)(6). Consistent with the statute, CCE has adopted and published
accreditation standards (the “Standards”). NUHS does not dispute that it
was not in compliance with Standards §§ 2.A and 2.H at the time CCE
reaffirmed its accreditation. Instead, it asserts CCE violated its due process
rights by imposing the sanction of probation because the Standards do not
permit CCE to grant reaffirmation of accredited status and, on the same
record, impose probation.
NUHS has not identified any Standard specifically prohibiting CCE
from placing a program on probation at the same time it reaffirms
accreditation. To the contrary, CCE Standard § 1, III.A. provides a list of
accreditation actions that CCE may take “at any time.” Among other things,
this list includes reaffirming accreditation and imposing probation. Further,
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Standard § 1, V. permits CCE to take any of the following actions against a
program that is not in compliance with all the Standards: (1) issue a
warning, (2) place the program on probation, or (3) require the program to
show cause why its accreditation should not be revoked. NUHS’s position
is inconsistent with Standard § 1, V. because it would foreclose CCE from
taking any action against a noncompliant program short of revocation of
accreditation.
Because the Standards contemplate situations in which a program can
remain accredited even if it is not fully in compliance with all acc reditation
standards, CCE did not act arbitrarily and capriciously when it
simultaneously reaffirmed NUHS’s accreditation and imposed probation.
2. An accrediting agency must also establish and apply review
procedures that comply with due process. 20 U.S.C. § 1099b(a)(6)(A). This
includes providing “written specification of any deficiencies identified at
the institution or program examined”; providing “sufficient opportunity for
a written response by an institution or program regarding any deficiencies
identified by the agency, to be considered by the agency within a timeframe
determined by the agency, and before any adverse action is taken”; and
notifying a program “in writing of any adverse accrediting action or an
action to place the institution or program on probation or show cause.” 34
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C.F.R. § 602.25(c)–(e). According to NUHS, CCE imposed the sanction of
probation without first providing written notification of any deficiencies and
without providing the opportunity to submit a written response. NUHS
alleges it did not receive written notification from CCE “prior to CCE’s
February 2, 2018 letter notifying NUHS that CCE was placing NUHS on
Probation.”
CCE Standard § 1, V.B. states that “[p]robation is an action reflecting
the conclusion of [CCE] that a program is in significant noncompliance with
accreditation standards or policy requirements.” NUHS’s position
improperly conflates CCE’s actions with its conclusions. Although CCE
concluded on February 2, 2018, that NUHS was not in compliance with the
Standards, it did not take any action against NUHS on that date. Instead, in
conformity with CCE Policy 8, NUHS’s status “remain[ed] unchanged”
until the CCE appeal process ended.
The CCE site team identified deficiencies 3 in NUHS’s compliance
with the Standards and NUHS was given the opportunity to respond in
3
“Concern” is defined in the final site team report as “a conclusio n of
the CCE Site Team that there is a deficiency, major to minor, in meeting the
Standards to which the comment is connected.” For due process purposes,
it is irrelevant that the CCE site team is not authorized to make a final
determination that a program is not in compliance with the Standards.
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writing to the site team’s final report. CCE and NUHS representatives also
discussed the areas of concern identified by the site team at a status review
meeting. Additionally, NUHS was notified in writing of CCE’s conclusion
that probation was appropriate and was given the opportunity to appeal that
proposed action before it became final. The record shows that CCE
adequately apprised NUHS of its concerns regarding noncompliance with
Policy 56, and Standards §§ 2.A and 2.H, and provided NUHS with multiple
avenues to advocate for its position. Thus, CCE’s decision to impose
probation was not arbitrary and capricious and did not violate CCE’s
obligation to apply review procedures consistent with due process . 20
U.S.C. § 1099b(a)(6)(A).
3. NUHS’s final claim involves CCE Policy 56 which requires a
program to “disclose up-to-date results of student performance on national
board examinations and completion rates on the program website.”
Relevant to the issue raised by NUHS, a program must “post annually the
overall weighted average of the four (4) most recent years’ NBCE Parts I,
II, III, and IV Exam success rates.” Policy 56 further provides that “[t]he
overall weighted average of the four (4) most recent years’ NBCE Parts I,
II, III, and IV Exam success rates must not be less than 80%.” One of
NUHS’s campuses is located in Illinois and until 2016, Illinois did not
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require chiropractic licensure applicants to take Part IV of the NBCE exam.
In its complaint, NUHS alleged that CCE failed to apply Policy 56 with an
“even hand” because it required NUHS to report any NUHS graduate who
did not take Part IV of the NBCE exam as having failed the exam. CCE
based its decision to impose the sanction of probation, in part, on NUHS’s
failure to meet the Policy 56 benchmark of eighty percent.
On January 29, 2019, CCE removed the sanction of probation based
on NUHS’s noncompliance with CCE Standards §§ 2.A and 2.H, but
retained the concern regarding Policy 56 and required further reporting. On
July 25, 2019, however, CCE informed NUHS “that its current 4–year
overall weighted average NBCE success rate (80%) meets the threshold
established in CCE Policy 56.” Based on NUHS’s compliance with Policy
56, CCE determined no further action or reporting was required by NUHS.
Effective July 1, 2016, the Illinois Medical Practice Act of 1987 (as
amended) added Part IV of the NBCE exam to the licensure requirements
for chiropractic physicians. See 68 Ill. Admin. Code § 1285.60(b)(1).
NUHS concedes in its opening appellate brief that “NBCE exam results
preceding the change in Illinois’ licensure requirement” only remained a
part of the Policy 56 calculation until July 1, 2020. Because NUHS has no
further reporting obligations with respect to NBCE exams administered
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before the change in Illinois law, its appeal from the denial of injunctive
relief prohibiting CCE from enforcing Policy 56 is moot. See San Lazaro
Ass’n, Inc. v. Connell, 286 F.3d 1088, 1095–96 (9th Cir. 2002). NUHS’s
appeal from the denial of a declaratory judgment that Policy 56 cannot be
applied to NUHS without violating common law due process principles is
also moot. See Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129
(9th Cir. 2005).
The judgment of the district court is affirmed as to the court’s
conclusion that CCE did not violate NUHS’s common law due process
rights (1) by imposing a sanction of probation while contemporaneously
reaffirming NUHS’s accreditation status and (2) by providing NUHS with
notice and opportunity to respond to identified deficiencies in the manner
described. The remainder of the appeal is dismissed as moot.
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