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

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL UNIVERSITY OF HEALTH No. 19-15352
SCIENCES,
Plaintiff-Appellant, D.C. No.
2:18-cv-01560-
v. NVW
COUNCIL ON CHIROPRACTIC
EDUCATION, INC., ORDER AND
Defendant-Appellee. OPINION
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
Filed November 13, 2020
Before: Michael R. Murphy, * Mark J. Bennett, and
Eric D. Miller, Circuit Judges.
Opinion by Judge Murphy
*
The Honorable Michael R. Murphy, United States Circuit Judge
for the U.S. Court of Appeals for the Tenth Circuit, sitting by
designation.
2 NUHS V. CCE
SUMMARY **
Accreditation
The panel filed: (1) an order granting a request for
publication, recalling the mandate, and withdrawing a
memorandum disposition and replacing it with an opinion;
and (2) an opinion affirming in part the district court’s
judgment denying the National University of Health
Sciences relief from a decision of the Council on
Chiropractic Education, Inc., and dismissing the appeal in
part as moot.
The Council accredits chiropractic doctoral degree
programs in the United States. It concluded that NUHS was
not fully compliant with all accreditation standards but,
nonetheless, reaffirmed its accreditation. At the same time,
however, the Council notified NUHS it was placing its
program on probation. NUHS raised common law due
process claims, and the parties proceeded on the assumption
that such a claim may be brought and that the arbitrary and
capricious standard applies.
The panel expressed no opinion on the validity of
common law due process claims challenging decisions
relating to accreditation. To maintain recognition by the
Secretary of Education, an accrediting agency must comply
with 20 U.S.C. § 1099b, which requires the agency to
consistently and evenhandedly apply and enforce standards
of accreditation and afford due process to the programs it
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
NUHS V. CCE 3
accredits. NUHS asserted that the Council violated its due
process rights because the Council’s accreditation standards
did not permit it to grant reaffirmation of accredited status
and, on the same record, impose probation. The panel held
that because the Council’s accreditation standards
contemplated situations in which a program can remain
accredited even if it is not fully in compliance with all
accreditation standards, the Council did not act arbitrarily
and capriciously when it simultaneously reaffirmed NUHS’s
accreditation and imposed probation.
Under § 1099b, an accrediting agency must also
establish and apply review procedures that comply with due
process. The panel held that the Council complied with this
requirement because it adequately apprised NUHS of its
concerns regarding deficiencies and provided NUHS with
multiple avenues to advocate for its position.
The panel concluded that NUHS’s final claim regarding
national board exams was moot.
COUNSEL
James B. Hiller (argued), Gordon Rees Scully Mansukhani
LLP, Chicago, Illinois; Julia K. Whitelock, Gordon Rees
Scully Mansukhani LLP, Alexandria, Virginia; for Plaintiff-
Appellant.
Patrick G. Cooke (argued) and Eric J. Skwiat, Swanson
Martin & Bell LLP, Chicago, Illinois, for Defendant-
Appellee.
4 NUHS V. CCE
ORDER
Defendant-Appellee’s request for publication, filed on
October 19, 2020, is GRANTED. The original mandate that
issued on September 10, 2020 is recalled. The memorandum
disposition filed August 19, 2020 is withdrawn and replaced
with an opinion filed concurrently with this order. Further
petitions for rehearing or rehearing en banc may be filed
pursuant to Ninth Circuit Rule 40-2.
OPINION
M. MURPHY, Circuit Judge:
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 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
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.
NUHS V. CCE 5
the assumption that NUHS can bring a common law due
process claim in this circuit and that the arbitrary and
capricious standard is applicable 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)). 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
6 NUHS V. CCE
that CCE may take “at any time.” Among other things, this
list includes reaffirming accreditation and imposing
probation. Further, 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 accreditation 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 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
NUHS V. CCE 7
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 2 in NUHS’s
compliance with the Standards and NUHS was given the
opportunity to respond in 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
2
“Concern” is defined in the final site team report as “a conclusion
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.
8 NUHS V. CCE
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
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
NUHS V. CCE 9
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 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.