                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 24 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SOUTHERN CALIFORNIA INSTITUTE                    No. 13-56718
OF LAW, a California corporation,
                                                 D.C. No. 8:13-cv-00193-JVS-RNB
              Plaintiff - Appellant,

 v.                                              MEMORANDUM*

ARCHIE JOE BIGGERS, individually and
official capacity; JAMES A. BOLTON,
individually and official capacity; J.
SCOTT BOVITZ, individually and official
capacity; DAVID A. CARRILLO,
individually and official capacity; LISA
CUMMINS, individually and official
capacity; PATRICK R. DIXON,
individually and official capacity;
COMETRIA C. COOPER, individually
and official capacity; RICHARD A.
FRANKEL, individually and official
capacity; K. V. KUMAR, individually and
official capacity; SEAN M. MCCOY,
individually and official capacity; JOHN
P. MCNICHOLAS, individually and
official capacity; SANDRA MENDOZA,
individually and official capacity;
MARTHA PRUDEN-HAMITER,
individually and official capacity;
STEVEN J. RENICK, individually and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
official capacity; SANDRA L. SALAZAR,
individually and official capacity; LARRY
SHEINGOLD, individually and official
capacity; JAMES VAUGHN, individually
and official capacity; JEANNE C.
VANDERHOFF, individually and official
capacity; LEE H. WALLACH,
individually and official capacity;
PATRICIA P. WHITE, individually and
official capacity; ALAN YOCHELSON,
individually and official capacity;
GEORGE C. LEAL, individually and
official capacity,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                       Argued and Submitted August 5, 2015
                               Pasadena, California

Before: O’SCANNLAIN, SILVERMAN, and WARDLAW, Circuit Judges.

      The Southern California Institute of Law (SCIL) appeals the district court’s

dismissal of its constitutional claims against members of California’s Committee of

Bar Examiners (CBE). As the facts are known to the parties, we repeat them only

as necessary to explain our decision.

                                         I



                                         2
      SCIL’s due process challenge to the 40% bar-passage requirement fails to

state a claim upon which relief may be granted. First, SCIL has no property

entitlement to receive further accreditation after its current accreditation expires in

2016, as such a decision rests ultimately within CBE’s discretion. See Shanks v.

Dressel, 540 F.3d 1082, 1091 (9th Cir. 2008). Because the challenged Guidelines

cannot disturb SCIL’s accreditation until 2017 at the earliest, SCIL has no viable

claim that such Guidelines will deprive it of its protected interest in accreditation.

SCIL has not alleged other property or liberty interests sufficient to support its due

process challenge. See, e.g., WMX Techs., Inc. v. Miller, 197 F.3d 367, 373–76

(9th Cir. 1999) (en banc) (rejecting due process challenge based on alleged

reputational damage to a California business).

      Second, CBE’s adoption of the 40% requirement would nevertheless satisfy

rational basis review, as there is certainly a “conceivable basis” that could support

such a requirement. Gallo v. U.S. Dist. Court, 349 F.3d 1169, 1179 (9th Cir. 2003)

(internal quotation marks omitted). CBE “has no obligation to produce evidence to

sustain the rationality” of its decision, but rather the burden is on SCIL “to

negative every conceivable basis which might support it.” Aleman v. Glickman,

217 F.3d 1191, 1201 (9th Cir. 2000) (internal quotation marks omitted). SCIL has

failed to do so.


                                           3
                                        II

      SCIL’s First Amendment challenge to Guideline 2.3(D) fails to state a claim

upon which relief may be granted. Such Guideline regulates only commercial

speech and thus is properly subject to the test set forth in Zauderer v. Office of

Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985). Further,

the required disclosure of past bar exam results easily satisfies this standard: such

requirement relates only to disclosure of “purely factual and uncontroversial

information,” and is reasonably related to CBE’s legitimate interest in ensuring that

prospective law students do not overestimate their prospects of passing the bar

after attending an accredited law school. Id. at 651. SCIL’s concern regarding the

implications a reader may take from bar passage rates does not alter our inquiry.

Cf. Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 850 (9th Cir. 2003) (required

disclosure of factual information does not prevent a speaker from “stating its own

views” about such facts).

                                             III

      Finally, SCIL’s due process challenge to the termination of its course-

sequencing waiver does not state a claim upon which relief may be granted. As

with its future accreditation, SCIL has no property entitlement to receive a

continuing waiver. Such waivers are explicitly temporary in nature, and require


                                             4
annual renewal. SCIL has not alleged sufficient facts to support the conclusion

that CBE’s history of allowing SCIL’s waiver without annual renewal requests

created a “legitimate claim of entitlement to”—rather than SCIL’s “unilateral

expectation of”—an ongoing waiver. Thornton v. City of St. Helens, 425 F.3d

1158, 1164 (9th Cir. 2012) (internal quotation marks omitted). “Longstanding

enjoyment of a government benefit, without more, does not create a property

right.” Id. at 1165 n.2. The granting of SCIL’s course-sequencing waiver remains

subject to CBE’s discretion, and thus does not give rise to SCIL’s due process

claim. See Shanks, 540 F.3d at 1091.1

      AFFIRMED.




      1
         SCIL’s Request for Judicial Notice, filed with this court on July 30, 2015,
is granted.

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