                           NOT FOR PUBLICATION                           FILED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


                                       4                                 19-15352
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.


                                       5                                 19-15352
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


                                      6                                   19-15352
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


                                     7                                  19-15352
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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