college versus the southern association of colleges and schools mr heron is here for pain to make he is here for the southern association such as pain because the creditors act as gate keepers for federal financial aid ensuring that the institutions and their students four hundred and twelve dollars in the case of payne college have access to such financial aid as the th circuit as the cost to an educational institution and its students of a denial of accreditation can be steep in institutions and not of accreditation is likely to promptly go out of business the denial of accreditation to an institution may also diminish the value of a degree earned by other students there in past years i see a little confused here because as i looked at these papers i thought you got accredited by another institution and but that's not as good an accreditation if you got your federal money right currently paying college is a candidate institution with the tracks association but is not accredited by tracks so they are a candidate institution and have not received full accreditation yet ok you getting your federal money currently students are receiving their federal funds that is correct it is southern association of bigger and better a credit to the southern association in educational circles would be considered the gold standard in the states in which it has accrediting authority the regional of creditors versus accredited bodies like tracks have a better standard as recognized as far as being the students being able to transfer to other institutions or using their degrees to go on for further education ok i'm just trying to figure out where we are the two year period is past right so two year period i thought it was that to your credit they some period and then you got to get another one maybe i got that wrong there is a under federal law there is a two year waiting period but currently calls pain is a candidate with tracks that two year waiting period no longer apply assuming that that pain could get its full accreditation by tracks which has not happened yet and you know it's still the accreditation by the southern association is something that you still a lot absolutely on ok absolutely  denied due process because of the way they constituted the appeals panel in this case your honor and what were alleging is not a substance that not dealing with the substantive area of the creditor but the perceived years by which they constituted this committee and the way that prior panel he was conflicted because he served on the board of trustees at the time they voted to start the process to remove his of the paines accreditation and under their procedures that would be a case the three hundred dr martin barker early say they were conflicted as well because they were appointed in order to avoid the loss of a core right and they were appointed without figuring out if you served on the panel we don't know what they would have determined and because we present a new evidence related to pains financial condition which is why they all i thought the new evidence was basically a formal version of the old that minutes that that's correct but the point  is that a new panel of a properly constituted panel may have reached a different decision did you actually show the district court that you had finances that would have qualified under any panel we made a showing to the district court which they ignored that we would have and that we believe we comply with their regulations again i don't think the district court or this court should substitute its judgment for that of the credit and body that is for the appeals panel to make a decision about that but don't you have to get to step one that you had evidence that some panel would have have approved and were some of the best solution we've submitted that to the district court your honor and it really goes to the issue of damages and i think that's that's that's kind of what judge wilson i think that's what you're hitting on and really the issue of damages is if we can show that there is a  were there on the panel and there were six members on that panel next and half of those members should have served and in the fine mortuary college the san juan battista and the wards corner beauty academy district court cases all of those courts looked at this issue of damages and find mortuary held that where the institution had submitted evidence of a rules violation and potential conflicts summary judgment was inappropriate and the court should have held a trial and in fact the court schedule a trial in that case and it settled prior to trial in san juan bautista the court found that having a current member of the accrediting board on the appeals panel even when that member didn't participate in the revocation decision w violation as opposed to a substantive violation which is exactly what we have in this case and the institution doesn't have to show damages that merely being denied that proceed sure that it was entitle to a sufficient damages especially when the be that they seek is a new hearing that's all that pain seeks in this case all we seek is a new hearing in front of a properly constituted appeals panel we're not asking this court to substitute its judgment for the accreditin body we're not asking the district court to substitute its judgment for the accrediting body what we're asking for is what we were entitled to under the procedures to have a properly constituted conflict free appeals panel  understand it dr lucky didn't vote on the matter when he was a trustee but he was a trustee he could have voted no he actually voted in the meeting to start the sanctions for paying college that began this process voted twice as a matter of fact he testified to that in his deposition and the other eleven and the other two people the problem is that they're not elected members that you think that they didn't find out whether the other people could have constituted a quorum of elected people that's correct they did that in they did not contact didn't perform their ministerial task to contact all of the elected members to try to establish a quorum again all we ask here is for a new hearing like can i go back to dr leckie again you may want to two different bodies one he was a trustee and then there was another compliance he served on on three different in three different positions in one year he was a member of the board of trustees when they voted to begin the sanction in the nd year he served on the executive council which made a recommendation to the board that they continue paying its warning status sanctions status he was in that meeting and he was also in the board meeting when the board took a vote on that particular recommendation and voted to continue the sanction to keep him  and please court my name's pat mchugh mr her parents position is that a procedural violation as a person a violation of common law due process that is not the rule in this court it is not the holding of hot wasi which is the only precedent this court has with regard to the review standard for an accrediting body and how losey the court this court held this we apply and whether the decision is based on substantial evidence there is no separate procedural prong of that ruling what pain college wants this court to do is to adopt the issue that's correct in this court in how aussie refused to do so and that is binding precedent in this court we just we just didn't answer the question that's all we did we just decided we were going to answer the question we're going to answer the question to the carefully yes you can and it is the wrong way to rule your honor the common law due process standard that's used primarily by the th that most references are to the one that's articulated by the th circuit and that is whether or not there is a fair procedure and whether they followed their procedures this court in the high wasi case says that the only way that a procedural violation should result in a reversal is if the decision is arbitrary and capricious that is what we asked this court to apply today just simply follow the precedent that this court stablished and how aussie followed what amounts to a an adoption of the a p a the administrative practices act standard and if there is a procedural violation as the district court determined the analysis to be if there is a procedural violation that procedural violation must be somehow prejudicial to the substance of the decision that's what we're asking  courts to make some kind of ruling the end as far as the standard to be applied poses you have a totally conflicted panel everybody is somehow involved with some other competing institution do you think ok he doesn't get a new panel no no no and that's not our position at all what is your position he's saying he's saying we district judge determined we didn't we had a procedure a violation then the district judge says but you haven't shown damages i took that to mean that they had made a case that another body might  record was about what they showed the district court about whether another body would have accredited i don't know that they addressed it as whether another body would have accredited them but what they did was as they addressed the dire financial state circumstances that they were in this is found in documents seventy dash two and in that pain does that does not dispute the dire financial circumstances of their situation furthermore pain makes no argument that the decision to drop the college made over forty years by hundreds of educators is substantively wrong these were the findings of the district court the district court held that the appeals committee reasonably concluded that the decision should be upheld and is supported by substantial evidence that is page thirty of the district court decisions consistent in all the cases your honor and back to the litany of circuit course courts that use the due process standard so what you're saying is if there were substantial evidence then it doesn't matter that it was an improperly constituted body know what i tell you what you say and what on what i'm saying is there has to be substantial evidence and if there is evidence that a procedural violation would have changed that decision then that may serve as a basis to overturn the decision but just simply as counsel points out simply a procedural violation any procedural violation would be a per se reversal the accrediting decision that's not what the law is ok so tell me again what the standard is from your point of view procedural violation plus what gets gets you home well if you're a violation  and on reasonable and if an abuse of discretion or whether the decision is based on substantial evidence we submit week it's clearly based on substantial evidence and the so called violation of procedures raised by paying college they do not result in the decision being arbitrary or capricious so to do so to judge just on his question before if you had six members all conflicted does it as having that number of conflict conflicted members does that not at some point rise to arbitrary and unreasonable yes i believe that at some point that if there are  conflicts like what counsel points out in the san juan bautista case and the fine mortuary case in those situations in fine mortuary for example the competitor was involved in the decision and was conflicted out in those to sit in those situations buzzer those courts applied what i consider to be a wrong reading of the common law due process standard that is eight decided that this kind of conflict constitutes a per se violation now they might have gotten to the right decision that is given those types of conflicts the el we disagree with that your honor and here's the reason why the the board of trustees of saks e e o c as a seventy seven dollars member board they serve for a pay most of them sara for about six years we require that the board of trustees members sit on the appeals committee because they have experience now because this process takes and in this case took four years if we said anybody who heard anything about the college at any stage was conflicted out there would be no but it who could sit on the appeals panel so what we do is we construe our conflict rule to say if you decide if you participated in the actual adverse decision the decision to drop and that's whether that's the way the policy reads the adverse decision if you participated in that you are conflicted out and that is how we have consistently construed the appeals procedure and the conflict ru now confused again he said dr lucky did do that that he voted on the on the decision to drop the he did not ok what did he placing the institution on warning and on probation were not according to our rules clear rules attached to the deposition of  appeals procedure rules do not say that warning and probation are adverse decisions they are not appealable decisions the only appealable decision in this circumstance is a drop who vote on the final decision to drop are conflicted otherwise we just simply could not have an appeals panel that had not had anything to do with the institution because over a period of four years these members sarah for six years at a time there is bound to be some interaction with the institution at some point now let me ask let me ask you one question mr heron said that pain college is in financial compliance can you address that it's not it hasn't been it was unable to show that to the district court the district court found that it was on contest that it failed to  the financial standards of saks e e o c and only the only thing that they have done is submitted evidence after the decision to drop that they contend would have changed that decision but as a matter of fact the appellate the appeals committee reviewed that evidence and said no we do not believe this would have changed the result it's not material it could not possibly result in a different decision i wish to also address what i'm going to bother you for you know the other two people i think there was some factual conflicts of some dispute of fact as to whether the there had actually been checking as to whether the elected officials were available some sort there was a dispute of facts on map and i was just wondering i mean this got to be some kind of rule of necessity and less you have some at a procedure for what you do if you don't have the right people well there is there is simply a rule that says that the chair has authority to appoint a substitute members of the appeals committee if a quorum from the elected group is not available so there is there is that oral so so the dispute is whether they checked enough to find out if there were see if people were available or not she knows these people she knew a number of them and knew for example with regard to dr bratten that she had received resign from her institution and moved to england and didn't give a forwarding address she knew that she also knew that debbie did know was unavailable because you told her there were other people that were found to be inappropriate because they were state conflicts we don't d people set on the committee that are from the same state so the process was a very deliberate one carol eastman went through it the court found that that process deserves had found that it was uncontested that the college was out of compliance but then i heard this morning that it was actually not a contest you argue we argued in our response to their motion for summary judgment found a document eighty one dollars that they failed to consider the audit because it was unverified because it wasn't verifiable that that's the that is where we made the argument that in fact we were in compliance we were in compliance with the audit that was something that could have been submitted but things one with that but i thought that formal audit showed the same thing as and not as an informal or and bear by whatever you want to call it not final audit and that information was all the informal information was not before the panel but they argued in front of the panel they shouldn't consider it because it's not verified they shouldn't consider the an audit information because it wasn't verified it needed to be audited so and that's in fact what we are w argued below now with respect to the deference issue judgments that you talked about at the supreme court in this last term in the wilkie case it the type of ad hoc changing of positions with respect to how they interpret their rules and not entitled to deference and in fact what they've done is they've interpret this rule in multiple raise carol luqman in a deposition testified well you had to vote on probation but not if you voted on warning that's not a conflict now they're arguing that you have to only vote on there is a conflict if the member voted only accreditations status at the institution either during the sax e e o c board meeting or the meeting on committees and compliance in reports at any time leading to the  that starts when they begin the sanction there's no question about that in addition to that in in part five of the appeal procedures and this can be found in the uk seventy four to six page two hundred and twenty one of the things that the ministerial task that the administrator has is all appeals committee members with no conflict of interest with the case being appealed will be invited to serve it's not a she has no discretion under the rule of saying well you know this person said one thing or this person says and then there's no discretion she didn't even make an attempt to contact two people there any evidence in the record in dealing with this appointment of a doctor early on dr martin is there any evidence that there were members of the committee that would have been able to serve had they been consulted before these two there's no evidence or there's no evidence in the record we didn't take their depositions we didn't do that but but the but the point is that based upon this case being at the issue at that at the point of summary judgment right and that she testified that she didn't contact everybody not only that the fact that the issue of the appointments in fact are belied by the timeline she contacted six elected members in a span of five minutes and then eight minutes later started contacting the unelected members and it wasn't until almost an hour after she contacted the elected members that she heard from the st member that they could serve she had no idea when she contacted the unelected members whether she could constitute a quorum with the ones that she had contacted much less the two that she didn't so they're even assuming there's a timing problem here what evidence is there that there were elected members who were somehow displaced by this process that would have otherwise been able to serve i don't think there's any evidence of that but what the evidence is is that she did not fulfill her ministerial task to actually go and contact them and that procedural violation what in titles to a new hearing but if you can't show us that because of this ministerial violation there are elected members who would have been otherwise eligible to serve who didn't what how that you are talking about as far as the appointment of dr early on dr martin that these folks were appointed before she had confirmed that elected members could or could not serve correct but if you haven't produced any evidence that they're elected members who could have served