Lincoln Memorial University Duncan School of Law v. American Bar Association (TV1)

Filing 34

OBJECTION to 32 Plaintiff's Notice of Supplemental Authority filed by American Bar Association. (Vogel, Howard) Modified text on 1/18/2012 (ABF).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION
LINCOLN MEMORIAL UNIVERSITY,
DUNCAN SCHOOL OF LAW,
Plaintiff,
v.
THE AMERICAN BAR ASSOCIATION,
Defendant.

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Case No. 3:11-CV-608
Hon. Thomas A. Varlan
Magistrate Judge C. Clifford Shirley

DEFENDANT AMERICAN BAR ASSOCIATION’S RESPONSE TO
PLAINTIFF’S NOTICE OF SUPPLEMENTAL AUTHORITY
Plaintiff’s Notice of Supplemental Authority (“Notice”) is improper under the Local
Rules and this Court’s briefing schedule for Plaintiff’s Motion for Temporary Restraining Order
and For Preliminary and Permanent Injunction. Even if the Court considers the Notice, however,
it provides no support for Plaintiff’s Motion and, instead, supports the ABA’s position.
First, Local Rule 7.1(d) bars supplemental filings without the Court’s prior approval
except to raise “developments occurring after a party’s final brief is filed” (emphasis added).
The Notice cites a nineteen-year-old case, Darby v. Cisneros, 509 U.S. 137 (1993), and the
School offers no explanation for having not cited Darby in its opening brief or a reply brief.
Second, Darby offers no support for the School’s argument that it can refuse to exhaust
its appeal rights before coming to this Court. This is because Darby considered the
Administrative Procedure Act (“APA”), which does not apply here. Thomas M. Cooley Law
School v. ABA, 459 F.3d 705, 712 (6th Cir. 2006) (ABA “is not a government authority and thus
is not governed by the [APA].”). Rather, this case is controlled by 20 U.S.C. § 1099b(a)(6)(C)
and the Department of Education’s implementing regulation, 34 C.F.R. § 602.25(f), under which

an accrediting agency must establish and apply review procedures that provide “an opportunity,
upon the written request of an institution or program, for the institution or program to appeal any
adverse action prior to such action becoming final.” If the School were entitled to obtain judicial
review without first seeking relief from the Appeals Panel, the result would be circumvention of
both 20 U.S.C. § 1099b(a)(6)(C) and 34 C.F.R. § 602.25(f). Further, in contrast to Darby, in
which the final agency action had already occurred, 509 U.S. at 146, the Council’s accreditation
decision will not be final until after the appeals period concludes. 34 C.F.R. § 602.25(f). Even
under the APA, nevertheless, an appeal is a prerequisite to judicial review “when expressly
required by statute or when an agency rule requires appeal before review and the administrative
action is made inoperative pending that review.” Darby, 509 U.S. at 153-54; see also Free
Enterprise Fund v. PCAOB, 130 S. Ct. 3138, 3150 (2010) (“when Congress creates procedures
designed to permit agency expertise to be brought to bear on particular problems, those
procedures are to be exclusive”) (internal quotation marks and citation omitted).
Third, the School misapplies Darby when discussing the Section’s Rule 10. In Darby,
the Court noted that exhaustion was not required under a statute that provided that a party “may”
seek rehearing but that did not automatically stay the underlying decision pending rehearing.
Darby, 509 U.S. at 150.

 Under
 Rule 10, however, an applicant “may” appeal an adverse
decision and the appeal automatically stays the Council’s accreditation decision. See Rule 10 at
ABA68-70. Rule 10 appropriately uses the word “may,” since whether to appeal is controlled by
the applicant.
Fourth, the School wrongly contends that the Council’s decision was treated as final by
publicizing it in contravention of the Section’s Rules. As stated by the Cooley Court, “This court
must defer to an agency’s interpretation of its own rules unless plainly erroneous.” Cooley, 459

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F.3d at 714. Publication of the decision was required by the Section’s Internal Operating
Practice No. 5(c) (Ex. 3 at ABA92-93) (requiring “written notification to the public within
twenty-four (24) hours of the time the Consultant notifies the law school in writing of any
decision to deny … provisional approval”). In conformance with the controlling statutes and
regulations, however, the determination of when that decision is final must be established under
the procedures set out in the Section’s Rule 10.
Dated: January 17, 2012

Respectfully submitted,

Patricia J. Larson*
Stephanie Giggetts*
American Bar Association
321 N. Clark Street
Chicago, IL 60654
[phone]

By: s/ Howard H. Vogel
.
Howard H. Vogel (001015)
Jeffrey R. Thompson (20310)
P. Alexander Vogel (023944)
O’Neil, Parker & Williamson, PLLC
7610 Gleason Drive, Suite 200
Knoxville, TN 37919
[phone]
Anne E. Rea*
Michael P. Doss*
Linda R. Friedlieb*
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
[phone]
Attorneys for Defendant

*Pro hac vice

CERTIFICATE OF SERVICE
I certify that on January 17, 2012, I properly served all parties by operation of the Court’s
electronic filing system to all parties indicated on the electronic filing receipt and U.S. Mail.
By:

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s/ Howard H. Vogel (001015)