Lincoln Memorial University Duncan School of Law v. American Bar Association (TV1)
Filing
56
MEMORANDUM OPINION AND ORDER; the Court hereby DENIES Plaintiff's Motion for Reconsideration 38 and GRANTS Defendant American Bar Association's Motion to Stay 41 . This case is STAYED through and until May 3, 2012, and defendant is ORDERED to submit a status report notifying the Court of the Appeals Panel's decision on or before May 3, 2012. In light of the stay, the Court also hereby DENIES, without prejudice and with leave to re-file within 21 days from the date the stay in this case is lifted, Defendant American Bar Association's Motion to Dismiss 43 .Signed by District Judge Thomas A Varlan on 4/2/12. (ADA) Modified text on 4/2/2012 (ADA).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
LINCOLN MEMORIAL UNIVERSITY
DUNCAN SCHOOL OF LAW,
Plaintiff,
v.
THE AMERICAN BAR ASSOCIATION,
Defendant.
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No.:
3:11-CV-608
(VARLAN/SHIRLEY)
MEMORANDUM OPINION AND ORDER
This civil action is before the Court on several motions: (1) Plaintiff’s Motion for
Reconsideration [Doc. 38];1 (2) Defendant American Bar Association’s Motion to Stay [Doc.
41];2 and (3) Defendant American Bar Association’s Motion to Dismiss [Doc. 43].3 For the
reasons explained in this memorandum opinion and order, the Court will deny plaintiff’s
motion for reconsideration, grant defendant’s motion to stay, and deny, without prejudice and
with leave to re-file, defendant’s motion to dismiss.
I.
Background
This action was previously before the Court on plaintiff’s motion for injunctive relief
[Doc. 2]. After carefully considering the matter, the Court denied plaintiff’s request [Doc.
1
Defendant filed a response in opposition [Doc.47], and plaintiff replied [Doc. 54]. Also,
plaintiff filed two declarations in support of the motion [Docs. 40, 46].
2
Plaintiff filed a response in opposition [Doc. 45], and defendant replied [Doc. 52].
3
Plaintiff filed a response in opposition [Doc. 48], and defendant replied [Doc. 55].
35]. Although discussed herein to the extent relevant, the Court presumes familiarity with
that decision, which plaintiff now asks the Court to reconsider pursuant to Rule 59(e) of the
Federal Rules of Civil Procedure [Doc. 38].4
II.
Motion for Reconsideration
Plaintiff moves the Court to reconsider its decision denying plaintiff’s request for
injunctive relief [Doc. 38]. Various grounds are asserted in support of this request, including
that there is newly discovered evidence concerning the constitution of the Appeals Panel, that
the Court erred in applying the appropriate standard for reviewing plaintiff’s due process
claim, that newly discovered evidence demonstrates that plaintiff is suffering irreparable
harm as a result of defendant’s decision, and that the Court erred in analyzing the harm to
defendant and the public interest [Docs. 38, 39].
A.
Standard of Review
Although the Federal Rules of Civil Procedure do not explicitly authorize motions for
reconsideration, they are commonly treated as either a Rule 59(e) motion or a Rule 60(b)
motion. Hood v. Hood, 59 F.3d 40, 43 n.1 (6th Cir. 1995). Plaintiff seeks relief pursuant to
Rule 59(e) [Doc. 38]. Because the instant motion was filed within twenty-eight days after
the entry of the order denying plaintiff’s request for injunctive relief, the Court agrees that
the motion should be considered under Rule 59(e). Id. (“[W]hen a post-judgment motion is
4
For consistency, terms defined in the Court’s memorandum opinion and order [Doc. 35] are
used in the same manner herein.
2
ambiguous as to whether it is filed pursuant to Rule 59 or Rule 60, if filed within [twentyeight] days of judgment, the appellate courts have construed it as a Rule 59 motion.”).
“A district court may grant a Rule 59(e) motion to alter or amend judgment only if
there is: ‘(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change
in controlling law; or (4) a need to prevent manifest injustice.’” Henderson v. Walled Lake
Consol. Schs., 469 F.3d 479, 496 (6th Cir. 2006) (quoting Intera Corp. v. Henderson, 428
F.3d 605, 620 (6th Cir. 2005)). Rule 59 motions are not “intended as a vehicle to re-litigate
previously considered issues; should not be utilized to submit evidence which could have
been previously submitted in the exercise of reasonable diligence; and are not the proper
vehicle to attempt to obtain a reversal of a judgment by offering the same arguments
previously presented.” Kenneth Henes Special Projects Procurement v. Cont’l Biomass
Indus., Inc., 86 F. Supp. 2d 721, 726 (E.D. Mich. 2000) (emphasis and citation omitted); see
also Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)
(nothing that a Rule 59(e) motion “is not an opportunity to re-argue a case” nor an avenue
to raise arguments that “could have, but [were] not” raised before (citation omitted)).
B.
Analysis
1.
Futility of Exhausting Administrative Remedies
In denying plaintiff’s motion for injunctive relief, the Court found that plaintiff had
failed to demonstrate a strong likelihood of success on the merits because it was likely
required to exhaust its administrative remedy [Doc. 35]. As part of this finding, the Court
considered plaintiff’s arguments why exhaustion should be excused [Id.]. One of the
3
arguments asserted by plaintiff was that exhaustion would be futile [Id.]. The Court
determined that exhaustion would not be futile:
Plaintiff asserts that the Appeals Panel, along with the Committee, the
Council, and the Consultant, are “part of a conspiracy to restrain free
commerce and preclude competition among law schools in violation of
the Sherman Act,” but plaintiff provides no evidence, only a conclusory
assertion, that this is the case. Rather, 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 it is subject to a conflict of interest policy.
20 U.S.C. § 1099b(a)(6)(C); 34 C.F.R. § 602.25(f)(1). The Court also
recognizes that the Appeals Panel has the authority to affirm, amend,
or reverse the decision of the Council, 34 C.F.R. § 602.25(f)(1), and the
applicable standard of review is whether the Council’s decision “was
arbitrary and capricious and not supported by the evidence on record,
or inconsistent with the Rules of Procedure and that inconsistency
prejudiced its decision,” [Doc. 21-2 at 8], a standard similar to that of
this Court. Moreover, it was represented to the Court that the current
sitting Appeals Panel was appointed prior to the decision of the
Council underlying this case; thus, there is no reason to speculate that
the Chair of the Council would appoint individuals who might tend to
affirm the Council’s decision in a case arising subsequent to the
composition of the Appeals Panel. Given all of this, the Court does not
find it is certain that plaintiff’s denial of provisional accreditation
would be upheld on appeal nor that, if successful, plaintiff’s remedy
would be inadequate. Indeed, the fact that the Council did not adopt the
Committee’s conclusion regarding Standard 511 indicates to the Court
that the Appeals Panel likewise would not simply affirm the Council’s
decision, but provide meaningful review.
[Id. (emphasis added)].
The day after the Court’s memorandum opinion and order was entered, January 19,
2012, plaintiff filed an appeal of the Council’s denial of provisional accreditation [Doc. 39].
Then, on January 31, 2012, defendant filed a notice of supplementation of the record and
supplemental declaration of Hulett H. Askew [Doc. 37]. The supplemental notice informed
4
the Court that, after the denial of injunctive relief, defendant learned that “due to
administrative delays and a large number of volunteer member appointments to be made for
Section committee and governance positions, the membership of the 2011–12 Appeals Panel
was not constituted until December 18, 2011” [Id.]. In addition, the Court was informed that,
after the Council denied plaintiff’s application for provisional approval on December 20,
2011, it was determined that the public member of the Appeals Panel could not serve on the
panel and as a result, the 2010–11 public member was appointed to serve a second term,
pursuant to Rule 10(g), on January 25, 2012 [Id.].
In its motion to reconsider, plaintiff argues that this newly discovered evidence
demonstrates that exhaustion would be futile because the “post hoc Appeals Panel is merely
a surrogate for the underlying deciders” [Doc. 39]. Plaintiff also asserts that the “post hoc
appointment” violates defendant’s own rules of procedure and further demonstrates the
futility of exhaustion [Id.].5
5
In its reply brief, plaintiff further asserts that permitting members of the Committee to attend
and participate in the Council hearing violated defendant’s own rules of procedure, specifically Rule
6 and Internal Operating Procedure 19, thus rendering exhaustion futile [Doc. 54]. It is well settled
that a movant cannot raise new issues for the first time in a reply brief because consideration of such
issues “deprives the non-moving party of its opportunity to address the new arguments.” Cooper v.
Shelby Cnty., No. 07-2283-STA-cgc, 2010 WL 3211677, at *3 n.14 (W.D. Tenn. Aug. 10, 2010)
(collecting Sixth Circuit and district court cases discussing this principle); see also Scottsdale Ins.
Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (noting that a party waives an issue raised for the
first time in a reply brief or motion for reconsideration). Further, the Local Rules of this District
provide that “reply briefs are not necessary and are not required by Court. A reply brief shall . . .
directly reply to the points and authorities contained in the answering brief.” E.D. Tenn. L.R. 7.1(c).
Accordingly, as a matter of litigation fairness and procedure, the Court declines to address this
argument at this time.
5
As an initial matter, the Court makes clear that its decision that exhaustion of the
administrative remedy available to plaintiff would not be futile was not based solely upon
the understanding that the Appeals Panel that would hear plaintiff’s appeal was appointed
prior to the determination of the Council underlying this case. Rather, the Court’s decision
was based upon several other factors as well, including that plaintiff’s allegations of a
conspiracy consisting of the Appeals Panel, the Committee, the Council, and the Consultant
were conclusory, that “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’”; that the Appeals Panel “is subject to a conflict of interest policy”; that
“the Appeals Panel has the authority to affirm, amend, or reverse the decision of the
Council”; and that the “applicable standard of review” for the Appeals Panel is “a standard
similar to that of this Court” [Doc. 35].
Although plaintiff asserts members of the Appeals Panel will be biased against
plaintiff and is “merely a surrogate for the underlying deciders,” plaintiff fails to provide any
support for this assertion except for the fact that the Appeals Panel was not fully constituted
until January 25, 2012; in other words, until after plaintiff filed its appeal. The record leads
the Court to conclude that the members of the Appeals Panel, however, most likely will not
be biased against plaintiff, despite this fact. One member of the Appeals Panel served as an
alternate on the 2010–11 Appeals Panel and one member served as the public member on the
2010–11 Appeals Panel, and each of the three members is subject to and has affirmed that
he or she will comply with the conflicts of interest policy set forth in Internal Operating
6
Practice 19 [Doc. 47]. They all also have prior experience in the accreditation process [Id.].
And while there is a mechanism for plaintiff to “request that a member of . . . the Appeals
Panel . . . recuse himself or herself from acting in such capacity with respect to the . . . law
school [under review],” plaintiff has not taken advantage of this opportunity [Doc. 21-3].
These facts, as well as the points the Court previously noted regarding futility (e.g., the
applicable standard of review and the Appeals Panel’s authority to affirm, amend, or reverse
the decision of the Council), suggest that the current Appeals Panel will likely not serve as
a “surrogate for the underlying deciders” [Doc. 39].
Plaintiff cites to Utica Packing Company v. Block, 781 F.2d 71 (6th Cir. 1986),
claiming it need not demonstrate that the individual Appeals Panel members are biased
against plaintiff where the “implementation of the appeal process itself exhibits bias” [Doc.
54]. Utica, however, is distinguishable from this case.
In Utica Packing, the United States Department of Agriculture (“USDA”) filed a
complaint with the Secretary of Agriculture, seeking the cancellation of a meat inspection
contract between the USDA and Utica Packing Company.
781 F.2d at 73.
The
Administrative Law Judge (“ALJ”) assigned to the case rendered a decision in favor of the
USDA, and Utica Packing Company appealed to the USDA Judicial Officer, Donald
Campbell, who “acts as the final deciding officer in lieu of the Secretary in Department
administrative proceedings . . . .” Id. at 72. Campbell affirmed, and Utica Packing Company
sought review of the decision. Id. at 73. Although the district court granted summary
judgment affirming the decision, the Sixth Circuit reversed and remanded the case for further
7
consideration by Campbell. Id. at 73–74. Upon further consideration, Campbell reversed
the ALJ and entered a decision in favor of Utica Packing Company. Id. at 74. The USDA
“violently disagreed” with this decision, but its only recourse at that point was to file a
motion for reconsideration with the Judicial Officer. Id. Before the USDA did so, however,
the Secretary removed Campbell from the case and replaced him with a Deputy Assistant
Secretary of Agriculture, John Franke, Jr., who was assisted by Richard Davis, an attorney
in the Office of General Counsel of the USDA whose immediate supervisor participated in
the removal of Campbell and appointment of Franke as well as the prosecution of Utica
Packing Company. Id. The USDA then filed a motion for reconsideration, which Franke
granted. Id. Utica Packing Company sought review of that decision, arguing that the
replacement of Campbell with Franke violated its due process right to a fair tribunal. Id. at
75. The Sixth Circuit agreed, stating:
There is no guarantee of fairness when the one who appoints a judge
has the power to remove the judge before the end of proceedings for
rendering a decision which displeases the appointer. Yet that is exactly
what occurred in this case. Campbell was appointed Judicial Officer
long before the Utica case arose, and considered the case in the normal
course of his duties. When Campbell rendered a decision in the case
with which USDA “violently disagreed,” officials of the department
unceremoniously removed him and presented a petition for
reconsideration to their hand-picked replacement.
Id. at 78. The Sixth Circuit noted that “[i]t [was] of no consequence for due process purposes
that [Utica Packing Company] [was] unable to prove actual bias on the part of Franke or
Davis.” Id. “The officials who made the revocation and redelegation decision chose a
non-career employee with no background in law or adjudication to replace Campbell.” Id.
8
“They assigned a legal advisor to the new Judicial Officer who worked under an official who
was directly involved in prosecution of the Utica case.” Id.
Here, the Appeals Panel was initially constituted as of December 18, 2011, two days
before the Council’s written decision denying plaintiff provisional accreditation. The next
month it was determined that the public member could not serve, so the former public
member was appointed to serve a second term, pursuant to Rule 10(g). Accordingly, it does
not seem that these members were “hand-picked” to handle plaintiff’s appeal, especially
given that each member is experienced in the accreditation process.6 In Utica, moreover,
there was at least some evidence from which one could infer bias; here, however, plaintiff
has put forth no evidence, except for the timing of the constitution of the panel, that even
suggests bias (e.g., that a member of the Appeals Panel was a Committee member at the time
the Committee made the recommendation to deny provisional approval), and the timing
appears to have been a result of factors unrelated to plaintiff’s application (i.e., administrative
delays). In light of these facts, and those points previously made by the Court concerning
the futility of exhaustion, the Court does not find there is an “intolerably high” risk of
unfairness in plaintiff pursuing an appeal. Utica Packing, 781 F.2d at 78.
Regarding plaintiff’s contention that the “post hoc appointment” of the Appeals Panel
violates defendant’s own rules of procedure and further demonstrates the futility of
6
The Court observes that plaintiff asserts the decision to deny provisional accreditation was
actually made at the December 2–3, 2011 meeting of the Council [Doc. 39]. Even if this is the case
and the Appeals Council was not constituted until approximately two weeks after the decision to
deny plaintiff provisional accreditation was made, the Court does not find the situation similar to
that in Utica Packing for the reason that follows in this paragraph.
9
exhaustion [Doc. 39], the Court recognizes that a departure from an accrediting agency’s
rules will not violate due process unless it has “resulted in any fundamental unfairness arising
out of the process employed.” Hiwassee Coll., Inc. v. S. Ass’n of Colls. & Schs., 490 F.
Supp. 2d 1348, 1351 (N.D. Ga. 2007), aff’d, 531 F.3d 1333 (11th Cir. 2008). The Court does
not find the departure from Rule 10(g) has resulted in any fundamental unfairness to plaintiff
here. There is no indication that any delay in deciding plaintiff’s appeal will come about as
a result of the setback in fully constituting the panel, nor is there any indication, as previously
discussed, that any panel member has a conflict of interest or will be biased against plaintiff.
Plaintiff states that “[c]ourts have recognized that the exhaustion requirement should
be excused in cases where there was no reviewing body or review procedure in place” and
cites United States v. Gutierrez, 443 F. App’x 898 (5th Cir. 2011), Bickerstaff v. Vinson
Guard Service, Inc., No. 97-3209, 1998 WL 290208 (E.D. La. June 2, 1998), and Curry v.
Contract Fabricators Inc. Profit Sharing Plan, 891 F.2d 842 (11th Cir. 1990), abrogated on
other grounds by Murphy v. Reliance Standard Life Ins. Co., 247 F.3d 1313 (11th Cir. 2001),
in support [Doc. 39]. The Fifth Circuit in Gutierrez, however, required the government to
exhaust the administrative remedies available to it before involuntarily medicating an
individual. 443 F. App’x at 904–05. In Bickerstaff, the district court held that an ERISA
plan manager could not adopt procedures after the fact and then argue that plaintiff failed to
exhaust those procedures when they did not exist at the time of the denial of benefits. 1998
WL 290208, at *3. Similarly, in Curry, the Eleventh Circuit determined that exhaustion was
not required where ERISA plan administrators denied the plaintiff “meaningful access” to
10
the unexhausted procedures. 891 F.2d at 846. Here, however, there were appeal procedures
in place and access to them was neither denied nor hindered. The Court finds these cases do
not support plaintiff’s position, nor persuade the Court that exhaustion should be excused.
Two other cases are cited by plaintiff for the proposition that a “court will set aside
agency action that does not follow the agency’s own regulation”: Wilson v. Commissioner
of Social Security, 378 F.3d 541 (6th Cir. 2004), and Rabbers v. Commissioner of Social
Security, 582 F.3d 647 (6th Cir. 2009) [Doc. 39]. These cases, likewise, do not support
plaintiff’s claim. In Wilson, a panel of the Sixth Circuit noted that “‘an agency’s violation
of its procedural rules will not result in reversible error absent a showing that the claimant
has been prejudiced on the merits or deprived of substantial rights because of the agency’s
procedural lapses.’” 378 F.3d at 546–47 (emphasis omitted) (quoting Connor v. United States
Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983)); see also Rabbers, 582 F.3d at 654
(same). The panel went on to state:
A procedural right must generally be understood as “substantial” in the
context of this statement when the regulation is intended to confer a
procedural protection on the party invoking it. The Supreme Court has
recognized the distinction between regulations “intended primarily to
confer important procedural benefits upon individuals” and regulations
“adopted for the orderly transaction of business before [the agency].”
In the former case, the regulation bestows a “substantial right” on
parties before the agency, and “it is incumbent upon agencies to follow
their own procedures . . . even where the internal procedures are
possibly more rigorous than otherwise would be required.” In contrast,
in the case of procedural rules “adopted for the orderly transaction of
business,” an agency has the discretion “to relax or modify its
procedural rules” and such action “is not reviewable except upon a
showing of substantial prejudice to the complaining party.”
11
Id. at 547 (alterations in original and citations omitted). The Court has reviewed Rule 10 and
finds that the time frame set out in Rule 10 for the appointment of the Appeals Panel falls
within the latter category and is intended for the “orderly transaction of business.” Plaintiff
has not sufficiently demonstrated that it is of the former type, and indeed, given that there
appears to be no delay or other irregularity caused by the late appointment of the Appeals
Panel, the Court cannot find plaintiff has been prejudiced on the merits or deprived of a
substantial right as a result.
In sum, the Court does not find the newly discovered evidence regarding the
appointment of the Appeals Panel demonstrates that an appeal would be futile, rendering
exhaustion of plaintiff’s administrative remedy unnecessary. It therefore finds no basis to
reconsider its decision that exhaustion of the administrative remedy available to plaintiff is
likely required in this case.
2.
Likelihood of Success on the Due Process Claim
Plaintiff argues that the Court erred in not analyzing whether it is likely to succeed on
the merits of its due process claim under Judulang v. Holder, 565 U.S. —, 132 S. Ct. 476
(2011). Plaintiff previously argued that Judulang clarified the standard of review applicable
to this type of case, but the Court disagreed, finding in part that “Judulang . . . does not
address the review of a decision of a quasi-governmental accrediting agency like the Section”
[Doc. 35]. The Court instead examined plaintiff’s due process claim under the framework
announced in Thomas M. Cooley Law School v. American Bar Association, 459 F.3d 705
(6th Cir. 2006) [Id.]. The Court agrees with defendant that plaintiff attempts to re-argue a
12
previously-considered issue that plaintiff had a full and fair opportunity to present [See Doc.
47]. Accordingly, the Court declines to reconsider plaintiff’s due process claim under
Judulang.
In addition, plaintiff fails to identify a clear error of law or newly discovered evidence
concerning the Court’s analysis of its due process claim. Plaintiff also does not cite an
intervening change in controlling law or provide any example of manifest injustice. Rather,
in its reply brief, plaintiff seemingly abandons its argument that the standard set forth in
Judulang applies here and argues that the Court did not properly apply the Cooley standard
[Doc. 54]. It is well settled that a movant cannot raise new issues for the first time in a reply
brief because consideration of such issues “deprives the non-moving party of its opportunity
to address the new arguments.” Cooper v. Shelby Cnty., No. 07-2283-STA-cgc, 2010 WL
3211677, at *3 n.14 (W.D. Tenn. Aug. 10, 2010) (collecting Sixth Circuit and district court
cases discussing this principle); see also Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553
(6th Cir. 2008) (noting that a party waives an issue raised for the first time in a reply brief
or motion for reconsideration). Further, the Local Rules of this District provide that “reply
briefs are not necessary and are not required by Court. A reply brief shall . . . directly reply
to the points and authorities contained in the answering brief.” E.D. Tenn. L.R. 7.1(c).
Accordingly, as a matter of litigation fairness and procedure, and because the parties had
ample opportunity to litigate the due process claim under the Cooley standard before the
Court initially decided the issue, the Court declines to address this argument.
13
3.
Irreparable Harm
The Court previously determined that plaintiff failed to establish that it was suffering
the type of irreparable injury necessary to obtain preliminary injunctive relief [Doc. 35].
Plaintiff now asserts that the Court erred in this determination because case law establishes
that loss of accreditation is a per se showing of irreparable harm [Doc. 39]. Plaintiff also
asserts that there is newly discovered evidence that demonstrates irreparable injury [Id.].
Regarding plaintiff’s assertion that the case law establishes that loss of accreditation
is a per se showing of irreparable harm, the Court finds plaintiff is merely reasserting, in
different terms, an argument that was previously made -- that is, that federal courts grant
TROs to protect reputation when the denial of accreditation violates due process. The Court
found the cases cited by plaintiff inapposite because they involved schools that had their
preexisting accreditation withdrawn [See Doc. 35].
As the Court has noted in this
memorandum opinion, Rule 59(e) motions are not an appropriate avenue to re-argue points
previously raised or assert issues that could have been, but were not, raised before.
Nevertheless, the Court has reviewed the new cases cited by plaintiff in support of its motion
for reconsideration, including Western State University of Southern California v. American
Bar Association, 301 F. Supp. 2d 1129 (C.D. Cal. 2004), Hampton University v.
Accreditation Council for Pharmacy Education, 611 F. Supp. 2d 557 (E.D. Va. 2009), and
Hiwassee College v. Association of Colleges & Schools, No. 3:05-CV-1282005 U.S. Dist.
LEXIS 39221 (E.D. Tenn. March. 31, 2005), and likewise finds them inapposite because they
too involved the withdrawal of accreditation. The Court further finds that Wilk v. American
14
Medical Association, 671 F. Supp. 1465, 1490 (N.D. Ill. 1987), does not stand for the
proposition asserted by plaintiff: that denial of accreditation of a hospital, or any other type
of entity or organization, is “per se” irreparable injury.
Plaintiff also submits that there is newly discovered evidence of irreparable injury,
particularly that its “students are both transferring and withdrawing from [the law school] in
significantly increased numbers and the number of students applying for admission to [the
law school] has also decreased from that in prior years” [Doc. 39]. In support, plaintiff
submits two declarations of Sydney Beckman, the Dean of the law school [Docs. 40-1, 46-1].
Dean Beckman states that, as of February 4, 2012, the law school had received, for 2012
admission, approximately twenty-six percent fewer applications for full-time students and
approximately fifteen percent fewer applications for part-time students compared to 2011;
that eight students have withdrawn from the law school as a result of defendant’s decision;
that competitor law schools, including Appalachian School of Law, are openly soliciting
plaintiff’s students to transfer to their schools, and more students are making preparations to
transfer to other law schools by requesting letters of good standing [Id.]. The Court does not
find that this newly discovered evidence demonstrates plaintiff is likely suffering irreparable
harm.
First, Dean Beckman’s declarations of injury, for the most part, fail to provide
information that supports the conclusion that the injuries were caused by defendant’s
accreditation decision. While Dean Beckman identifies a drop in applications compared to
the prior year, he fails to articulate whether the decline is a result of defendant’s decision or
15
whether it is the result of other factors discussed in this case previously [See Doc. 21-6
(indicating a decline in applications since 2009); Doc. 36]. Dean Beckman similarly
provides no information to allow the Court to conclude that students are seeking to transfer
as a result of defendant’s decision, except for the eight students who have disclosed that they
were withdrawing from the law school as a result of the defendant’s decision. And that other
law schools may be soliciting plaintiff’s students to transfer to their schools does not
necessarily mean that plaintiff’s students are seeking to transfer on the basis of defendant’s
decision; other factors could be relevant. Indeed, the excerpt submitted from Appalachian
School of Law’s website, although indicating that it is offering application fee waivers for
students from Lincoln Memorial’s Duncan School of Law, does not expressly encourage
plaintiff’s students to transfer to Appalachian School of Law because of defendant’s decision
or even reference the defendant’s decision [See Doc. 46-2].
Second, the Court previously found that plaintiff’s asserted harms were not irreparable
because the law school could re-apply for accreditation after ten months from the date of the
letter reporting the Council’s decision, or sooner for good cause. Dean Beckman’s
declarations do not dispute this point, and plaintiff even submits that it has “requested that
the ABA waive the waiting period for re-application for provisional approval . . . .” [Doc.
39]. Moreover, to the extent that students are transferring out of or withdrawing from the law
school, there are no allegations that the loss of tuition from these students could not be
remedied by money damages. See Manakee Prof’l Med. Transfer Serv., Inc. v. Shalala, 71
16
F.3d 574, 581 (6th Cir. 1995) (“[M]onetary damages do not generally constitute irreparable
harm.” (citations omitted)).
Third, the Court recognizes that “newly discovered evidence” for the purposes of
Federal Rule of Civil Procedure 59(e) is evidence that “pertain[s] to facts which existed at
the time of trial.” Davis v. Jellico Cmty. Hosp. Inc., 912 F.2d 129, 136 (6th Cir. 1990)
(emphasis omitted); see also Estate of Leroy Hickman v. Moore, Nos. 3:09-CV-69, 3:09-CV102, 2011 U.S. Dist. LEXIS 118576, at *10 (E.D. Tenn. Oct. 13, 2011). Plaintiff states that
the newly discovered evidence “has developed since the Court’s January 6, 2012 hearing”
[Doc. 39]. Thus, it is not newly discovered evidence.
The Court also highlights that it previously found plaintiff’s alleged harms would not
be undone by granting the relief plaintiff requested [Doc. 39]. Despite plaintiff’s alleged new
harm, the Court finds this still to be true. Moreover, plaintiff asks the Court to preserve the
status quo as it existed prior to defendant’s decision; that is, that the law school’s
“application remains pending” [Doc. 39]. Defendant, however, posted the following
announcement on its website after plaintiff filed an appeal, which effectively serves the same
purpose:
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.
[Doc. 47].
17
In sum, the Court does not find the newly discovered evidence establishes irreparable
injury. The Court therefore finds no basis to reconsider its decision in this regard.
4.
Harm to the Others, Including Defendant, and the Public Interest
The Court previously determined that if the Court were to grant the requested
injunctive relief, defendant would suffer substantial harm because its free speech rights
would be compromised [Doc. 35]. The Court also previously determined that the requested
injunction would not serve the public interest [Id.]. Plaintiff now asks the Court to reconsider
these conclusions, but the Court declines to do so for two reasons.
First, plaintiff’s requested relief—that defendant “be ordered to post on its website
this Court’s reconsidered Opinion and Order finding that [the law school] is entitled to
injunctive relief because it is likely to prevail on its claim that [defendant’s] decision was
arbitrary and capricious” [Doc. 39]—is merely a reiteration of its previous request for relief.
As the Court has repeatedly noted throughout this memorandum and opinion, a Rule 59(e)
motion is not the proper avenue to raise arguments that were or could have been raised
before. Nevertheless, the posting of such would still compromise defendant’s free speech
rights for the reasons previously explained.
Second, plaintiff claims that an injunction would “protect the public’s interest in the
accurate reporting of accreditation decisions and the need to ensure that such decisions are
not made in an arbitrary and capricious manner” [Doc. 39]. While the Court would tend to
agree had plaintiff demonstrated that it is likely to succeed on the merits, plaintiff has not
done so.
18
In sum, for the reasons stated above, the Court will deny plaintiff’s motion for
reconsideration.
III.
Motion to Stay
Defendant moves the Court for a stay of this litigation [Doc. 41]. Defendant asserts
a stay is appropriate because plaintiff has filed an appeal of the Council’s decision denying
provisional accreditation with the Appeals Panel [Id.]. Defendant further asserts a stay will
allow plaintiff to properly exhaust its administrative remedies, allow the Appeals Panel a full
opportunity to consider plaintiff’s claims, avoid premature interference with the Appeals
Panel’s processes, and provide a complete administrative record for judicial review [Id.].
Plaintiff opposes the motion, relying in part upon the arguments set forth in the motion
for reconsideration [Doc. 45]. As the Court has found that motion lacking merit, this basis
for opposing the motion to stay likewise lacks merit. Plaintiff also asserts that, in the event
the Court denies its motion for reconsideration, the Court should stay only plaintiff’s due
process claims, not plaintiff’s antitrust claims, because plaintiff’s antitrust claims are not
subject to exhaustion of administrative remedies [Id.]. In support, plaintiff cites Tate v.
Chiquita Brands Int’l Inc., No. 1:09-CV-6, 2009 U.S. Dist. LEXIS 68670 (S.D. Ohio Aug.
6, 2009), and Bell v. Hercules Liftboat Co., No. 11-332-JJN-SCR, 2011 U.S. Dist. LEXIS
76756 (M.D. La. July 15, 2011) [Id.].
The Court initially notes that both Tate and Bell fail to support plaintiff’s contention.
In Tate, the defendants moved to dismiss or stay plaintiff’s ERISA claim on the basis that the
plaintiff had not exhausted his administrative remedies. 2009 U.S. Dist. Lexis 68670, at *1.
19
The Court determined that it would be inappropriate to do so because it could not determine
whether the plans at issue were subject to ERISA and required the plaintiff to exhaust
administrative remedies. Id. at *18. In Bell, the defendant moved to stay the action, arguing
that plaintiff’s retaliation claim was governed by the Americans with Disabilities Act, which
required exhaustion of administrative remedies. 2011 U.S. Dist. LEXIS 76756, at *2–3. The
court denied the motion because the plaintiff asserted that her retaliation claim was based
solely on state law, which did not require exhaustion. Id. at *7.
The Court also recognizes that the power of a court to stay proceedings is “‘incidental
to the power inherent in every court to control the disposition of the causes on its docket with
economy of time and effort for itself, for counsel, and for litigants.’” Esperson v. Trugreen
Ltd. P’ship, No. 10-2130-STA, 2010 U.S. Dist. LEXIS 64637, at *4 (W.D. Tenn. June 29,
2010) (quoting Landis v. N. Am. Co., 299 U.S. 248, 254 (1936)). Three factors are
considered when determining whether to stay an action: “(1) potential prejudice to the
non-moving party; (2) hardship and inequality to the moving party if the action is not stayed;
and (3) the judicial resources that would be saved by the stay.” Id. at *5. Considering the
first factor, the Court finds plaintiff would not likely suffer prejudice because its status as an
unaccredited law school awaiting a final decision regarding provisional accreditation would
not change. Considering the second factor, defendant would suffer hardship because it
would be required to litigate issues that are currently under its review. Finally, considering
the third factor, the Court finds a stay will save judicial resource because a decision of the
Appeals Panel will clarify, limit, or eliminate some or all of the issues involved in this case.
20
The Court further observes that plaintiff has admitted that its antitrust claims are grounded
in the same allegations concerning plaintiff’s due process claims [Doc. 5].
In sum, the Court finds that a stay of this litigation until such time the Appeals Panel
renders a decision will serve the interests of judicial economy and efficiency. The Court will
therefore grant defendant’s motion and stay this case.
IV.
Conclusion
For the reasons explained herein, the Court hereby DENIES Plaintiff’s Motion for
Reconsideration [Doc. 38] and GRANTS Defendant American Bar Association’s Motion
to Stay [Doc. 41]. This case is STAYED through and until May 3, 2012,7 and defendant is
ORDERED to submit a status report notifying the Court of the Appeals Panel’s decision
on or before May 3, 2012. In light of the stay, the Court also hereby DENIES, without
prejudice and with leave to re-file within twenty-one (21) days from the date the stay
in this case is lifted, Defendant American Bar Association’s Motion to Dismiss [Doc. 43].
IT IS SO ORDERED.
s/ Thomas A. Varlan
UNITED STATES DISTRICT JUDGE
7
Defendant represents that the Appeals Panel’s decision will be rendered no later than this
date [Doc. 42].
21
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