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

Filing 42

MEMORANDUM in Support of Motion re 41 MOTION to Stay filed by American Bar Association. (Attachments: # 1 Exhibit Knoxnews.com Article)(Vogel, Howard)

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
MEMORANDUM IN SUPPORT OF MOTION TO STAY
Defendant American Bar Association (“ABA”) submits this Memorandum in support of
its motion for a stay of the litigation in this matter. The ABA respectfully submits that a stay is
appropriate at this time because plaintiff Lincoln Memorial University Duncan School of Law
has publicly disclosed that it has filed an appeal under Rule 10 of the Rules of Procedure for
Approval of Law Schools from the Council’s decision denying provisional approval to the
School. Ex. 1, “Lincoln Memorial files appeal with Bar Association,” knoxnews.com, January
19, 2012.1 Pursuant to Rule 10, the Appeals Panel’s decision must be rendered no later than May
3, 2012. A stay of the litigation while the School exhausts its accreditation remedies, therefore,
will “ensure[] that the expert agency ‘has had a full opportunity to consider a petitioner’s
claims,’ avoid[] ‘premature interference with the agency’s processes,’ and allow[] the agency ‘to
compile a record which is adequate for judicial review.’” Doc. 35 (Memorandum Opinion and

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The School has also disclosed that it has separately asked the Council to waive the ten-month
waiting period for the School to reapply for provisional approval. Id. The ten-month period runs
from the date of the Council’s December 20, 2011 letter reporting its decision. Rule 11(b), Doc.
21-2 at 11.

Order) at 15 (quoting Bi Xia Qu v. Holder, 618 F.3d 602, 609 (6th Cir. 2010)). See also Gray v.
Bush, 628 F.3d 779, 785 (6th Cir. 2010) (recognizing district court’s inherent power to stay
proceedings to control its own docket and ensure that each matter is handled “with economy of
time and effort for itself, for counsel, and for litigants.” (quoting Landis v. North Am. Co., 299
U.S. 248, 254 (1936)).2
The ABA confirms that on January 19, 2012, the School filed its appeal of the Council’s
decision. A notice of the School’s appeal is posted on the Section’s website, which states:
“Lincoln Memorial University Duncan School of Law has appealed the Council’s denial of its
application for provisional approval. The Council’s decision is stayed pending the decision of
the Appeals Panel under Rule 10 of the Rules of Procedure for Approval of Law Schools.”
Council School Actions, available at www.americanbar.org/groups/legal_education.html (last
visited February 7, 2012).
In this Court’s Memorandum Opinion and Order denying the School’s motion for
preliminary injunction, this Court found, among other matters, that the School did not have a
likelihood of success on the merits because the School failed to exhaust its administrative
remedies prior to filing this litigation. Doc. 35 at 14-20. The Court concluded that exhaustion
required that the School appeal the Council’s decision to the Appeals Panel, as provided in Rule
10 of the Rules of Procedure for Approval of Law Schools. Id.
In its Memorandum Opinion and Order, the Court also discussed the School’s asserted
reasons for why it should not be required to exhaust its accreditation remedies, but concluded

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Under this Court’s January 11, 2012 Order (Doc. 31), the ABA is to respond to the Complaint
by February 8, 2012. To comply with the Court’s Order, and in the event the Court does not
grant the motion to stay, the ABA has concurrently filed a motion to dismiss the Complaint
pursuant to Fed. R. Civ. P. 12(b)(6).

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that “none of the reasons, however, likely excuses the exhaustion requirement.” Doc. 35 at 1718 (citing McCarthy v. Madigan, 503 U.S. 140, 146-48 (1992) (identifying three sets of
circumstances in which an individual’s interests weigh heavily against requiring exhaustion: (1)
where requiring exhaustion would give rise to undue prejudice in a later court action; (2) where
there is some doubt as to whether the agency was empowered to grant effective relief; and (3)
where the administrative body is shown to be biased or has otherwise predetermined the issue
before it), superseded on other grounds, 42 U.S.C. § 1997(e)).
As to the School’s assertions that it should not have to exhaust the appeals process
because it is also asserting claims under the Sherman Act, the School admits that its antitrust
claims are based on the same accreditation allegations that underlie its due process claims. Doc.
5 at 15. In addition, the Court found that “a review of the antitrust claims reveals that they do
not challenge the appeals process itself.” Doc. 35 at 18. Thus, “it appears there is no reason not
to require exhaustion,” id., and the entire litigation should be stayed pending the Appeals Panel’s
decision in order to avoid piecemeal litigation.
As to the School’s prior assertion that the appeals process is too long because it would
preclude students from applying for the summer 2013 bar examination, the Court noted that a
notice on the School’s website states that it “makes no representation to any applicant that it will
be approved by the American Bar Association prior to the graduation of any matriculating
student.” Id. (quoting Doc. 20 ¶ 114). Further, given the School’s decision to wait to file its
appeal nearly a full month after issuance of the December 20 letter reporting the Council’s
decision, the School should not now be permitted to claim that a stay until the Appeals Panel
renders its decision would result in an unreasonable delay in this litigation.
As to the School’s assertions that exhaustion would be futile, the Court recognized in its

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Memorandum Opinion and Order that the Appeals Panel has the authority to affirm, amend or
reverse the decision of the Council, and that the standard of review is whether the Council’s
decision was arbitrary and capricious and not supported by the evidence on record, or was
inconsistent with the Rules of Procedure and that inconsistency prejudiced its decision. Id. at 20.
The ABA asserts, first, that with the School’s filing of its accreditation appeal, the School should
be deemed to have waived its alleged arguments as to futility. Further, a stay of the litigation
pending the Appeals Panel’s decision is appropriate because that decision may have a substantial
impact on the School’s claims in this litigation: the decision may narrow or render moot some or
all of the issues to be addressed by this Court and will give the Court the benefit of a complete
administrative record should the School determine to continue this litigation following the
appeal. Finally, as this Court noted, “federal law dictates that the Appeals Panel not be
comprised of any ‘current members of the agency’s or association’s underlying decisionmaking
body that made the adverse decision,’ and that it is subject to a conflict of interest policy.” Id. at
19 (citing 20 U.S.C. § 1099b(a)(6)(C); 34 C.F.R. § 602.25(f)(1)). The Section’s conflict of
interest policy, Rule 19(h) of the Section’s Internal Operating Procedures, moreover, provides
that the dean of a law school under review may request, for good cause stated, that a member of
the Appeals Panel recuse himself or herself from acting in that capacity with respect to the
dean’s law school. Doc. 21-3 at 13.
On the other hand, if this litigation is not stayed, judicial review will continue before the
accreditation process is completed. As stated by the Sixth Circuit, the exhaustion doctrine
“promotes a sensible division of tasks between the agency and the courts: parties are discouraged
from weakening the position of the agency by flouting its processes and the court’s resources are
reserved for review and resolution of those matters where a dispositive solution is unavailable in

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the administrative process.” Shawnee Coal Co. v. Andrus, 661 F.2d 1083, 1092 (6th Cir. 1981).
The exhaustion doctrine thus “‘serves interests of accuracy, efficiency, agency autonomy and
judicial economy.’” Id. (quoting Ezratty v. Comm. of Puerto Rico, 648 F.2d 770, 774 (1st Cir.
1981)). See also Aikens v. Ingram, 652 F.3d 496, 502 (4th Cir. 2011) (en banc) (“We have
readily ordered a stay of an ongoing federal action pending exhaustion of administrative or state
proceedings….”).
The ABA respectfully submits that all of the considerations supporting a requirement that
the School exhaust its accreditation remedies also support the entry of a stay in this litigation.
The ABA therefore requests that this litigation be stayed pending a final decision by the Appeals
Panel on the School’s appeal.
Dated: February 8, 2012
Patricia J. Larson*
Stephanie Giggetts*
American Bar Association
321 N. Clark Street
Chicago, IL 60654
[phone]

Respectfully submitted,
By: s/ Howard H. Vogel
.
Howard H. Vogel (001015)
Jeffrey R. Thompson (20310)
P. Alexander Vogel, TN (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

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CERTIFICATE OF SERVICE
I certify that on February 8, 2012, I properly served all parties with Defendant American
Bar Association’s Memorandum In Support Of Motion to Stay by operation of the Court’s
electronic filing system to all parties indicated on the electronic filing receipt and U.S. Mail.
By:

CH1 6479910V.2

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s/ Howard H. Vogel (0001015)