                                      PUBLISHED

                      UNITED STATES COURT OF APPEALS
                          FOR THE FOURTH CIRCUIT


                                       No. 18-1290


WARDS CORNER BEAUTY ACADEMY, a Virginia Corporation,

            Plaintiff – Appellant,

v.

NATIONAL      ACCREDITING            COMMISSION      OF   CAREER    ARTS    &
SCIENCES,

            Defendant – Appellee.


Appeal from the United States District Court for the Eastern District of Virginia, at
Norfolk. Mark S. Davis, Chief District Judge. (2:16-cv-00639-MSD-LRL)


Argued: March 20, 2019                                       Decided: April 30, 2019


Before KEENAN and DIAZ, Circuit Judges, and DUNCAN, Senior Circuit Judge.


Affirmed by published opinion. Senior Judge Duncan wrote the opinion, in which Judge
Keenan and Judge Diaz joined.


William A. Lascara, PENDER & COWARD, Virginia Beach, Virginia, for Appellant.
Julia Kim Whitelock, GORDON REES SCULLY MANSUKHANI, LLP, Washington,
D.C., for Appellee.
DUNCAN, Senior Circuit Judge:

          Plaintiff-Appellant Wards Corner Beauty Academy (“WCBA”) appeals the district

court’s dismissal of its case following a bench trial. After the National Accrediting

Commission of Career Arts and Sciences (“NACCAS”) withdrew WCBA’s accreditation

as a barbering and cosmetology academy, WCBA filed suit against NACCAS alleging

due process violations in the accreditation proceeding and seeking injunctive and

declaratory relief. On appeal, WCBA challenges the district court’s dismissal of its due

process claims based on three alleged violations: first, that one Commissioner had an

impermissible pecuniary interest in the outcome of the decision; second, that NACCAS’s

alleged failure to follow its own conflict of interest rules violated WCBA’s due process

rights; and third, that the Commissioners reviewing WCBA’s accreditation prejudged the

decision by acting as both investigators and adjudicators. For the following reasons, we

affirm.



                                             I.

          NACCAS is a non-profit corporation organized under the laws of Virginia. It is

recognized by the United States Department of Education as a national accrediting

agency, see 20 U.S.C. § 1099b(f), and is responsible for granting and reviewing

accreditation for institutions such as WCBA.

          WCBA is a cosmetology and barbering institution in Virginia. WCBA was first

accredited in 1977 by NACCAS’s predecessor, the Cosmetology Accrediting



                                             2
Commission, and its accreditation was continuously renewed until 2014. This case arises

from NACCAS’s decision to withdraw WCBA’s accreditation in 2014.

      NACCAS maintains Rules of Practice and Procedure (the “NACCAS Rules”) as

well as Standards and Criteria that define both the process for schools to renew

accreditation and the substantive criteria they must meet to maintain accreditation.

Pursuant to these requirements, schools must maintain a benchmark graduation rate of at

least fifty percent. Each accredited school must submit an annual report of aggregated

student data to demonstrate compliance with the benchmark graduation rate.           If

NACCAS determines that a school has not met the benchmark graduation rate, the school

must bring itself into compliance with the NACCAS Rules. Should a school fail to do so,

NACCAS may take adverse action, including placing the school on probation or

withdrawing the school’s accreditation. A school may appeal such adverse action to an

Appellate Review Panel.

      In November 2014, WCBA submitted its 2013 Annual Report to NACCAS

reporting a graduation rate below the fifty percent benchmark. NACCAS informed

WCBA that it had twelve months to bring its graduation rate into compliance. WCBA

submitted its 2014 Annual Report to NACCAS in the fall of 2015, at which point

NACCAS determined that WCBA had failed to demonstrate a compliant graduation rate.

Nonetheless, NACCAS permitted WCBA to submit supplemental information

demonstrating that its graduation rate was in fact compliant. WCBA submitted this

information in January 2016.



                                          3
      In February 2016, NACCAS held a week-long Commission Meeting at which the

NACCAS Commission considered and voted upon numerous school actions, including

WCBA’s accreditation. A day or two before the Commission votes on a school action

(e.g., WCBA’s accreditation), its File Review Teams, each comprised of three

Commissioners, independently investigate the school action in question and make a

recommendation to the full Commission. As part of this process, File Review Teams

consider written reports prepared by NACCAS’s Compliance Department staff.

NACCAS staff assigns case files to the File Review Teams, who do not know which

school actions they will investigate until they meet on the designated day. After the File

Review Teams submit their recommendations, the full Commission convenes to discuss

and then vote on the various school actions.

      At the February 2016 Commission Meeting, the Chairman of the Commission,

Michael Bouman, presided over the Commission Meeting by calling the agenda items

and moderating the discussion.      Bouman also personally participated in reviewing

WCBA’s file as part of the File Review Team process. Typically, as Chairman, Bouman

would not have been assigned to a File Review Team. Because one of the File Review

Teams was missing a member, however, Bouman filled in as a substitute. Bouman’s File

Review Team was tasked with determining whether to recommend that the full

Commission withdraw WCBA’s accreditation.




                                               4
      Bouman was also the President, Chief Operating Officer (“COO”), and part owner

of Empire Education Group, Inc. (“EEG”), which operated a school near WCBA. 1 The

district court later determined that at the time of the Commission Meeting, Bouman was

unaware of a potential conflict between WCBA and EEG. He had no prior dealings with

WCBA, nor was he aware of the geographic proximity between the two schools.

Consequently, he did not recuse himself.

      Upon reviewing the WCBA file, Bouman’s File Review Team recommended that

NACCAS withdraw WCBA’s accreditation. In doing so, Bouman personally signed the

“action form” recommending that the full Commission vote to withdraw accreditation.

Subsequently, the full Commission considered WCBA’s case and unanimously voted to

withdraw WCBA’s accreditation.       As Chairman, Bouman did not participate in the

discussion before the full Commission, nor did he vote on the matter, though he was

present in the room. WCBA appealed the decision in May 2016 to an Appellate Review

Panel, which affirmed the decision in October 2016.

      WCBA then sued in federal district court, asserting that it was denied its common

law right to due process in the NACCAS accreditation proceedings and requesting

injunctive and declaratory relief.    Specifically, WCBA contended that Bouman’s

involvement in the proceedings--given his purported pecuniary interest in their outcome



      1
        Bouman received financial remuneration for his involvement with EEG. As
President and COO, Bouman earned an annual salary of $260,000. In addition, Bouman
had on occasion received bonuses from EEG in previous years. He also owned less than
one percent of EEG’s stock through its employee stock program.

                                           5
through his relationship with WCBA’s competitor, EEG--violated WCBA’s due process

rights.

          The case proceeded to a multi-day bench trial at which multiple witnesses,

including Bouman, testified. In its comprehensive post-trial order, the district court

denied WCBA’s request for relief. It first determined that while WCBA’s Norfolk school

and EEG’s Virginia Beach school were competitors “at some level” during the relevant

time period, multiple factors counseled against finding that the schools were in direct

competition with one another. Wards Corner Beauty Acad. v. Nat’l Accrediting Comm’n

of Career Arts & Scis., 290 F. Supp. 3d 463, 466 (E.D. Va. 2018). The court then

assessed Bouman’s financial interest in EEG and determined that any interest he might

have held regarding the outcome of the accreditation proceedings was not disqualifying

for purposes of WCBA’s due process claims. Therefore, although the “case present[ed] a

relatively close call,” the court concluded that Bouman’s indirect, limited, and

speculative pecuniary interest in the proceedings failed to rebut the “presumption of

honesty and integrity” to which administrative decisionmakers such as Bouman are

entitled. Id. at 480. WCBA timely appealed.



                                              II.

          Following a bench trial, we review the district court’s factual findings for clear

error and its legal conclusions de novo. Fed. R. Civ. P. 52; Helton v. AT & T Inc., 709

F.3d 343, 350 (4th Cir. 2013). Under the clear error standard, “[i]f the district court’s

account of the evidence is plausible in light of the record viewed in its entirety, the court

                                              6
of appeals may not reverse it even though convinced that had it been sitting as the trier of

fact, it would have weighed the evidence differently.” Anderson v. City of Bessemer City,

470 U.S. 564, 573–74 (1985).        In reviewing accrediting agency decisions, we are

deferential as well: we consider only whether the decision “is arbitrary and unreasonable

or an abuse of discretion and whether the decision is based on substantial evidence.”

Prof’l Massage Training Ctr., Inc. v. Accreditation All. of Career Sch. & Colls., 781 F.3d

161, 171 (4th Cir. 2015) (citation omitted).



                                               III.

       WCBA raises three issues on appeal. First, WCBA argues that it was denied an

impartial decisionmaker based on Bouman’s purported pecuniary interest in the outcome

of the accreditation decision. Second, WCBA argues that NACCAS’s failure to follow

its own conflict of interest rules violated WCBA’s due process rights. Third, WCBA

contends that the Commissioners improperly prejudged the decision by acting as both

investigators at the File Review Team level as well as adjudicators when they voted with

the full Commission. We address each issue in turn.



                                               A.

       First, WCBA argues that Bouman’s participation in the NACCAS proceedings

violated its due process rights in light of his pecuniary interest in the withdrawal of

WCBA’s accreditation. We begin by explaining the relevant law governing due process

challenges in the accreditation context. We then consider each of WCBA’s various

                                                7
arguments and affirm the district court’s conclusion that there was no due process

violation here.



                                             1.

       We first addressed a common law due process challenge to an accreditation

agency’s decision in Professional Massage, 781 F.3d 161. We held there that while

“[a]ccreditation agencies are private entities, not state actors, and as such are not subject

to the strictures of constitutional due process requirements,” they still owe a “common

law duty . . . to employ fair procedures when making decisions affecting their members.”

Id. at 169 (citation omitted). Significantly, however, we stressed, as the district court

here recognized, that “[a]n administrative decisionmaker is entitled to a ‘presumption of

honesty and integrity.’” Id. at 178 (alterations omitted) (citation omitted).

       In defining what constitutes a disqualifying pecuniary interest for the purposes of

due process, the Supreme Court has held that a litigant is not denied an impartial

decisionmaker when the decisionmaker has “a slight pecuniary interest” in the outcome

rather than a “direct, personal, substantial” interest. Aetna Life Ins. Co. v. Lavoie, 475

U.S. 813, 825–26 (1986) (emphasis added) (citation omitted). In that case, the Court held

that the plaintiffs were not denied constitutional due process where the judges “might

conceivably have had a slight pecuniary interest” because “[a]ny interest they might have

had . . . was clearly highly speculative and contingent.”         Id.   This court has also

previously held that recusal is unnecessary where the pecuniary interest at issue is

“remote and speculative.” In re Va. Elec. & Power Co., 539 F.2d 357, 368 (4th Cir.

                                              8
1976). In contrast, a state licensing tribunal violates due process when its members have

a direct and substantial interest in the outcome of the proceedings. For example, the

Court found a due process violation where members of a state licensing board stood to

benefit from the proceedings because the “individual members of the Board . . . would

fall heir to [plaintiffs’] business” should the plaintiffs’ licenses be revoked. Gibson v.

Berryhill, 411 U.S. 564, 571 (1973).

       A due process claim does not require a showing that the adjudicator was actually

influenced by the alleged pecuniary interest. Instead, the question is whether sitting on

that case “would offer a possible temptation to the average . . . judge to . . . lead him not

to hold the balance nice, clear and true.” Caperton v. A.T. Massey Coal Co., 556 U.S.

868, 879 (2009) (alterations in original) (citation omitted); see Stivers v. Pierce, 71 F.3d

732, 741 (9th Cir. 1995) (explaining that there are two ways a plaintiff may demonstrate

a due process violation: actual bias on the part of the adjudicator, or an adjudicator’s

pecuniary interest “in the outcome of the proceedings [that] create[s] an appearance of

partiality that violates due process, even without any showing of actual bias”).

       Determining whether an adjudicator’s pecuniary interest violates due process is a

fact- and context-specific inquiry. See Pinar v. Dole, 747 F.2d 899, 907 (4th Cir. 1984)

(“[D]ue process is flexible and calls for such procedural protections as the particular

situation demands.”) (citation omitted). This is particularly true in the accreditation

context, where adjudicators are often members of the industry they are evaluating. Here,

for example, seven of the thirteen Commissioners are owners or administrators of schools

in fields of training within NACCAS’s scope, including cosmetology and barbering.

                                             9
Indeed, as the Ninth Circuit has observed, “[i]f members of a licensing board were

disqualified whenever they have ‘some’ competitive interest in the outcome of

proceedings before them, practitioners in the field would as a practical matter be

excluded from becoming members of such boards.” Stivers, 71 F.3d at 743.



                                            2.

      With this legal framework in mind, we consider WCBA’s argument that

Bouman’s participation in the NACCAS proceedings violated WCBA’s due process

rights. According to WCBA, Bouman had an improper pecuniary interest in WCBA’s

competitor by virtue of his EEG position and stock ownership and was therefore

financially motivated to withdraw WCBA’s accreditation. WCBA’s argument implicitly

relies on several conjunctive steps: WCBA and EEG must have been in competition with

one another such that Bouman’s connection to EEG was problematic; the revocation of

WCBA’s accreditation must have resulted in its students transferring to EEG; and,

finally, to the extent that EEG’s student enrollment increased at all, it must have led to

some sort of financial benefit to Bouman. While we conclude that WCBA’s theory fails

at the first step, out of an abundance of caution we nonetheless address each of WCBA’s

arguments below.

      As a threshold matter, WCBA’s argument requires that WCBA and EEG were in

competition with one another. It is true, as the district court acknowledged, that there

was “some degree of competition” between WCBA and EEG. Wards, 290 F. Supp. 3d at

480. However, such competition does not give rise to a due process violation here in

                                           10
light of multiple factors found by the district court, which WCBA does not contest. First,

there were three other competitors in the area besides WCBA and EEG, diluting the

competitive significance of any one school. Second, although WCBA and EEG were

twelve miles apart from one another, the district court nonetheless determined--and

indeed WCBA itself acknowledged in its verified complaint--that the schools were a

“considerable commuting distance away” from one another. Id. at 480–81. The district

court reached this conclusion after considering that few WCBA students had access to a

means of transportation that would have made it possible for them to attend EEG rather

than WCBA. Indeed, WCBA’s President himself testified that the difficulty of securing

transportation was “reason alone” for many students to drop out of WCBA. 2 Id. at 481.

Therefore, this distance, coupled with the students’ resources, created a “substantial

limitation[] on the degree of direct competition” between the schools.        Id. at 480

(emphasis omitted). Third, WCBA taught both cosmetology and barbering, whereas

EEG taught only cosmetology. Finally, certain administrative obstacles--such as the

differences in teaching methods and curricula--made it difficult for students to transfer

between schools. Accordingly, the limited amount of competition between WCBA and

EEG at the relevant period simply does not rise to the level of “direct competition”

necessary to form the basis for a common law due process claim.




      2
          The district court further observed that EEG itself operated two schools
approximately twenty to twenty-five miles apart, highlighting the limited geographic
reach of each school. Wards, 290 F. Supp. 3d. at 480.

                                           11
       Cases where such competition has been found make the distinction clear. In

Gibson, the Supreme Court found that a state licensing tribunal held a direct and

substantial competitive interest where the adjudicators would have inherited the business

of the plaintiffs--who represented nearly half of all suppliers in the relevant statewide

market--as a result of the proceedings. 411 U.S. at 571, 578–79. Similarly, in Wilkerson

v. Johnson, 699 F.2d 325, 328–29 (6th Cir. 1983), the Sixth Circuit affirmed a jury

verdict finding a due process violation where a licensing board member owned the

barbershop next door to the plaintiff’s. The court reasoned that “the licensing of the new

barber shop next door would have created direct and significant competition for [the

board member].” Id. at 328. Here, in contrast, there were at least three other competitor

schools in the area, and together with additional factors that the district court considered,

WCBA and EEG were simply not in “direct and significant competition” with one

another such that Bouman’s involvement in the NACCAS proceedings violated WCBA’s

due process rights.

       Even assuming that WCBA and EEG were in direct competition with one another,

however, WCBA fails to meet the remaining steps necessary to establish a due process

claim. WCBA has not demonstrated that NACCAS’s decision to withdraw WCBA’s

accreditation resulted in students transferring from WCBA to EEG. The record evidence

shows that at most, three students transferred from WCBA to EEG, and only one of those

students appears to have done so after it became public knowledge that WCBA lost its




                                             12
accreditation. Further, there is no evidence in the record indicating that this transfer was

motivated by NACCAS’s accreditation decision. 3

       Even if we were to consider the fact that one student transferred to EEG following

the revocation of WCBA’s accreditation, WCBA has not shown that this resulted in a

financial benefit to Bouman that was direct and substantial such that it gave rise to a due

process violation. See Lavoie, 475 U.S. at 825–26. On the contrary, the district court

found, and we agree, that any interest Bouman might have had in the outcome of the

proceeding was “slight,” Wards, 290 F. Supp. 3d at 485, rather than “direct, personal, [or]

substantial,” Lavoie, 475 U.S. at 826. The revocation of WCBA’s accreditation did not

result in a direct financial benefit to Bouman. There is no evidence in the record to

suggest that Bouman received any remuneration--by way of a bonus or otherwise--from

EEG as a result of NACCAS’s accreditation decision. And any indirect, “trickle down”

financial benefit he might receive in the future is purely speculative. Wards, 290 F.

Supp. 3d at 485. This is so in part because Bouman had not received a bonus from EEG

for several years due to the industry’s substantial decline and one did not appear to be

forthcoming.   In addition, Bouman expressed his plans to retire in the near future,

undercutting the suggestion that he was motivated by a financial interest in the WCBA

accreditation decision. Accordingly, such a slight pecuniary interest is not disqualifying

for the purposes of a common law due process claim.


       3
         We further note that WCBA did not argue, and so we do not address, that
prospective students decided to go to EEG instead of WCBA as a result of the
accreditation decision.

                                            13
       We note that Bouman’s role in the ultimate accreditation decision was limited. He

did not participate in the final debate before the dispositive vote was cast, nor did he

formally vote to withdraw accreditation. While Bouman was a member of the File

Review Team that considered WCBA’s accreditation initially, he did so only to fill in for

another team member who was unexpectedly absent; Bouman could not have anticipated

the happenstance of such an opening on the team that was assigned WCBA’s school

action. Further, upon finding Bouman’s testimony to be credible, the district court

concluded that any such interest Bouman might have held was unknown to him at the

time of the proceedings. Bouman was therefore not improperly tempted from “hold[ing]

the balance nice, clear and true.” 4 Wards, 290 F. Supp. 3d at 486 (quoting Caperton, 556

U.S. at 878).

       We conclude that there is insufficient evidence that WCBA was deprived of an

impartial decisionmaker as a result of Bouman’s speculative pecuniary interest so as to

justify a departure from the deferential standard due to an accreditation agency. We

therefore affirm the district court’s determination that NACCAS did not deprive WCBA

of its right to due process of law on this basis. 5


       4
          We emphasize that actual bias is not necessary to make out a due process claim
and that the appearance of partiality may be sufficient to support such a claim. See
Stivers, 71 F.3d at 741. Here, however, for the reasons stated supra, we do not find that
the limited competition between WCBA and EEG constitutes such an appearance of
partiality in this case.
       5
         We likewise reject WCBA’s related argument that Bouman’s participation
violated WCBA’s due process rights because his fiduciary duty to EEG creates an
unresolvable conflict of interest. The district court considered and rejected WCBA’s
(Continued)
                                               14
       Nonetheless, we share the district court’s concern that throughout the Commission

Meeting--from the assignment of school actions to File Review Teams to the final vote--

neither NACCAS Commissioners nor staff appear to have considered whether ruling

upon a school action might result in a financial benefit to a Commissioner.         Such

safeguards may be prudent to avoid a due process violation, whether by actual bias or the

appearance of partiality. See Stivers, 71 F.3d at 741.



                                             B.

       Second, WCBA argues that NACCAS’s failure to follow its own internal rules

violated WCBA’s due process rights.          Specifically, WCBA argues that Bouman’s

participation in the accreditation proceedings breached NACCAS’s internal rules, and

that this in turn constitutes a violation of WCBA’s common law due process rights. In

support of this argument, WCBA relies on Professional Massage, where we explained

that “[w]hen adjudicating common law due process claims against accreditation agencies,

courts should ‘focus primarily on whether the accrediting body’s internal rules provide[d]

a fair and impartial procedure and whether it [followed] its rules in reaching its

decision.’” 781 F.3d at 172 (alterations in original) (citation omitted).




contention that Bouman had a duty to EEG to drive competition out of business through
his role at NACCAS. Wards, 290 F. Supp. 3d at 480 n.14. The court reasoned, and we
agree, that such a finding would effectively preclude any practitioner from serving on
such a board. See Stivers, 71 F.3d at 743. Indeed, WCBA fails to cite to binding
authority in support of its position, and we decline to endorse it here.

                                             15
      The district court rejected WCBA’s argument for the same reasons that it found

that NACCAS had not violated WCBA’s common law due process rights. The court

explained that NACCAS’s internal rules “necessarily require[] a Commissioner to

evaluate the scope of a potential conflict in determining whether to recuse himself or

herself from a specific agenda item, and the application of such fact-specific analysis is

consistent with, and co-existent with, the common law right to an impartial

decisionmaker.” Wards, 290 F. Supp. 3d at 485 n.26.

      We agree. We are unpersuaded that NACCAS’s rules impose a higher standard

than the general common law duty to provide an impartial decisionmaker such that a

violation of those rules leads to a due process violation in this case. The two provisions

that WCBA argues NACCAS violated require Commissioners to disclose potential

conflicts of interest--including “actual or potential personal benefit[s] from another

source” and “personal interests”--and prohibit Commissioners from abusing their position

to gain “improper personal, material or pecuniary benefits,” respectively. 6 J.A. 652. But

NACCAS’s internal rules do not define what constitutes an improper personal or

pecuniary interest, and we see no basis upon which we can infer that NACCAS has

imposed more stringent disqualifying pecuniary interests. We therefore affirm dismissal

of WCBA’s due process claim based on an alleged violation of NACCAS’s internal rules.



      6
         WCBA has not argued that, and therefore we do not consider whether, aside
from a purported financial benefit, Bouman received or expected to receive “actual or
potential personal benefit[s] from another source” such that those benefits constituted a
disqualifying interest for due process purposes. J.A. 652.

                                           16
                                              C.

       Finally, WCBA argues that the district court erred in denying its due process

claims on the theory that the Commissioners who reviewed WCBA’s accreditation--

namely, the File Review Team--improperly prejudged the decision by acting as both

investigators and adjudicators. Because WCBA failed to raise the issue to the district

court until post-trial briefing, we decline to address it here.

        As a rule, “issues must be raised in lower courts in order to be preserved as

potential grounds of decision in higher courts . . . [which] requires that the lower court be

fairly put on notice as to the substance of the issue.’” Nelson v. Adams USA, Inc., 529

U.S. 460, 469 (2000). Further, a party must do more than raise a non-specific objection

or claim to preserve a more specific argument on appeal.           Rather, “to preserve an

argument for appeal, the party must press and not merely intimate the argument during

the proceedings before the district court.” In re Under Seal, 749 F.3d 276, 287 (4th Cir.

2014) (citation omitted). Finally, an argument “must be timely” to be preserved. Id.

(quoting Kollsman, a Div. of Sequa Corp. v. Cohen, 996 F.2d 702, 707 (4th Cir. 1993)).

       WCBA insists that it preserved this question prior to trial.          Specifically, it

contends that in the final pre-trial order, WCBA stated the following as a triable issue:

whether “one of the participants in the withdrawal of Ward Corner’s accreditation [had] a

conflict of interest.” J.A. 716. But this broad framing of the issues neither “plainly” nor

“properly” identified such issues for the district court. See In re Under Seal, 749 F.3d at

288. On the contrary, the triable issue suggests--as the district court here observed--that

“[t]he issue requiring the resolution of disputed facts and inferences in this case has

                                              17
always been centered on whether Mr. Bouman’s interest in EEG required him to recuse

himself under the portions of NACCAS’s ethical rules.” Wards, 290 F. Supp. 3d at 487

n.29.

        Faced with WCBA’s prejudgment argument post-trial, the district court expressly

“reject[ed] [WCBA’s] late-raised contention that it was denied the right to fair procedure

based on [NACCAS’s] method of combining investigative and/or prosecutorial functions

with adjudicative functions. Such claim is untimely as it was not identified by Plaintiff as

a triable issue in the final pre-trial order.” Id. at 487 n.28. We agree and do the same

here; WCBA failed to preserve this issue below and cannot raise it now on appeal.



                                              IV.

        Accordingly, the district court’s order is

                                                                              AFFIRMED.




                                              18
