honour's this matters an appeal from a decision of the district court disposing of the complaint of william lovell college under twelve b six for failure state a claim specifically the district court ruled amongst other things vance traffic school in two thousand and one it st became nationally accredited in two thousand and seventeen a series of events occurred leading to the matter that's before the court today specifically the fact which underlies all of the claims is the issuance of a public show caused by the distance education accrediting commission specifically  the d e c issued a public show cause order on its website identifying certain alleged deficiencies with the school's accrediting amongst the various problems with the  public show cause notice was the date of the show cause notice specifically to show cause was issued in february of two thousand and seventeen the d e c amongst getting many many other things incorrect in the show cause notice got the actual date of the show cause notice in correct and they predated it by approximately one year the issuance of the show cause directive of course trigger very has problems with our these often framework you don't take issue with the legal principles at least i didn't see any argument to that effect in your brief what you're taking issue with is the conclusion that it wouldn't have been futile to go through  exhaustion we take issue with the futility yes we left that exhausting would have been futile as well as the adequacy of the the procedures that were laid out in the d e c s accreditation handbook and that's why we believe that the district court erred through those two reasons and if i may address the st the issue has arisen is whether or not this show cause notice is actually a final order or a final adjudication under  thirty four dollars c f r six of two dollars final orders must be published and the d e s c as well as the district court maintain that because a show cause is equivalent to probation it is essentially a final quarter and the d e c is required to publish it within twenty four hours of the issuance of the show cause or however the d e c zone administrative policies specified that is not actually fine or that it's it's not an adverse decision it's rather a statement of concern so we have within these administrative policies decision we have to be given the college has to be given the opportunity to appeal to correct the record to you but let's get this let's get this right before it's published to the to the general public we were never given that opportunity if the court is going to presume that the show cause order is a final order or is the final determination which requires publication we have to have the opportunity to appeal before that becomes public and the damage and the danger that that result is is very evident in this case which is one of the reasons why the case should be reversed and remanded is because as soon as this as soon as this show cause directive was that the die is cast the public is put on notice of all these various accrediting deficiencies whether right or wrong and then we're supposed to sort of unring that bell if you will about that diving cast no i would agree with you your honor that the accreditation had not been terminated at that point however for all practical purposes it had been amongst other things the error in the show cause creating a fire one year when when this public show cause was made known we got calls from our donors we got calls from our students we could choose to draw we had over seventeen million dollars in donations lined up to fund the future of the future expansion of this college those those donations were withdrawn we were used to not disclosing to our donors and to our students the fact that we had been on probation we're under show cause for one year i mean i guess i'm not suggesting that the issues of a show cause order can't have practical effects because when something is published about anybody or anything it can have practical effects but in terms of what we're looking at the there was process yet to be had after the issuance of a show cause order that you chose not to that your client chose not to avail itself of i would agree with that to some extent st of all we that's where i believe we get into the futility argument which is the most other things executive director matthews recusing herself in a poignant law firm to undertake the remainder of the of the of the accredit process the continuing review of the accreditation but the purpose is to circle back for purposes of due process under six of two twenty five the the c the agency must demonstrate that it afforded us ample due process by amongst other things giving us the right to appeal before a decision becomes final and if we if we accept the trial court's decision that a show cause is final if we accept a position that the show cause is final we should've been given that opportunity to to appeal and as you've indicated there are practical ramifications those practical ramifications even though we still are credited where it is due to show now being accused of defrauding our going our students i mean that debt is in fact a denial of our due process and that's why we stand here grief is that we needed the opportunity to come into court we were not given this opportunity prior to publicizing to the world this this series of events leading us to be accused of fraud and the post show cause in the postal cause remedies were were not adequate given the fact that number one we matthews had already resigned or recused herself as the executive director number two inclusive within the body of that show cause directive was a statement that reapply you've gotten you haven't lost your credit ation but start over reapply as a new institution the accept it i think we're caught in it is sort of a no man's land where the i agree with you that's what the department of education's guidelines do specify however the d e s c says well we're not going to abide by that essentially and we're going to call our show cause just notice of an adverse or concern it's not an adverse action it's just notice of our concerns of concerns so in our briefing where do we in our briefing and in our underlying complaint the issue was raised that we had inadequate procedures prior to public prior to the issue of the public no just simply put to refocus what this case is about or rules the rules that congress and the department of education set for what institutions like the college are supposed to do when they get a result during the writing process that they don't like those are the rules that are designed to ensure the college gets the due process and title to him and that the decisions of the accrediting commissions like the d e c are fair and consistent as was the college agreed to follow each and every time it submitted an application for predication of for renewal of its accreditation and those rules the college broke when the public show of shooting in the show cause a directive notice of which was put on the commission's website when the college instead of following all the procedures that it still had in front of it consideration of the new application appeal of any adverse decision to an appeals panel reviewed by an independent arbitrator the college skipped all the steps and went straight to this court  lawsuit seeking her she went to the district court for the southern district of new york with a lawsuit seeking seventeen million dollars in damages the district court of playing a variety of legal theories concluded that that was improper and dismissed the lawsuit with prejudice in the commission respectfully submit that this court should affirm i want to start with the exhaustion issue and without taking issue with everything my brother counsel said during his argument one thing that he did not address is this court standard for futility the argument for futility exception to the exhaustion of administrative remedies doctrine i point your honour's to the communications workers case which says emerge to make out a case for exhaustion the party that's claiming that exhaustion was should be excused for futility has to show that each of the remaining steps would certainly have resulted in an adverse  certainly of result in that st decision and quite frankly there's nothing in the complaint nothing in the record that the argument is made that each of these steps that still lay ahead of the college which again consideration of a brand new accreditation then if that application was unsuccessful they were given the opportunity to appeal to an independent appeals panel the members of which cannot be the members of the commission as i understand their argument though everything you say is right about accreditation but doesn't it doesn't sound like they're disputing that what they're saying is yeah maybe accreditation would have been renewed or whatever the proper terminology is and this is when you already are accredited but there's nothing that you can do about the show  respect would rather that that's an accurate way you can do is you can submit the invited new application the show cause directive says we've in effect we've identified what design are you for you if you submit the i'm not necessarily taking issue with your ultimate legal proposition i'm just talking about on this aspect of the case what does that do for you if you can resubmit that allows you to remit credit to your remaining demming what happened here is that the col something like that i assume not what we've if the application were successful then it certainly would show cause status with them terminated you can read the directive and the handbook for a vote for the process that it sets forth but what it says in the show cause directive and i will one year from the january two thousand and seventeen meeting to come into compliance with the accreditation standards and so that and that that even that period can be extended for a good cause so the college has some amount of time to submit an application and then built into the process is a very long tail to consider the application work through whatever the issues are that have been identified in the show cause directive which are laid out in great detail and when we say we get to consider the application that's the application for they're saying look ok we can get accreditation renewed i get that that that may well be the case that there was process to be had on that score and maybe we would have prevailed on that but what really hurt us was the issues of the show cause order period and you just can't undertake that and notice it has to be public and i think if you just also point back if you look at the screen grab is evident from that screen grab the letter itself wasn't published on the website all that was published was no it was there's a click here notation but all that says is you can look for the accreditation standards there that's not the letter that's something different and that's plain from looking at the again but the document that's in the record page sixty five dollars of the appendix but the point about whether th notice needed to be published at all again the the party with whom who was in power to address that is the department of education if you look at thirty four c of r six  b one in b two what the colleges argument is is that nothing can be won which speaks in terms of probation and which is different i'll point out the department of education's guidance says that show cause is a form of probation or should be read within that phrase the colleges argument is nothing within the one meets that standard unless you also need to be two weeks in terms of final decisions on applications for accreditation to withdraw terminate  cetera so under the code is interpretation one might as well not exist because nothing can ever fit into the category of the one because it's not final that simply impermissible the this works one of statutory construction regulatory construction for that matter construction of a contract any legal document is that every word must be given a fact and that's where the commission respectless admits that that's so here and so there must be something that gets in the category in six of two twenty six b one and that is precisely what happened here  also concluded was a basis for dismissing this claim because again what happened here is that the institution was placed on show cause status but given the opportunity to submit a review that location which was never submitted and the district court ruling on that basis as an alternative also dismissed on that basis this court can also be firm on that basis i want to briefly just talk about both the state law claims as on those points and then just finally get to the issue of preemption where what we have here is a comprehensive federal regulatory scheme set up by congress and the department of education that has very specific standards for what accrediting institutions like the commission must do and so to plead state law claims radio in particular for example this defamation claim seeks to recover seventeen million dollars in damages for a publication required by the regulations and the breach of contract claim which in the reply brief the college says that the basis for that claim is a breach of the to the commission's conduct our submission is that under the armstrong case that is necessarily applying standards to the commission's conduct not set by congress and the department of education that's contrary contrary to the regulatory scheme inconsistent with it and therefore an alternative basis for affirming the result below is preemption unless or any other questions are asked some very thank you kelly girl we'll give you two minutes thank you and just read off in response to your question i think there are a couple different points in our briefing where we were redress the issue i was raising of our primary brief pages twelve through thirteen and then in the serious deficiencies right and so mark question to you was did you argue that the department of education misinterpreted its a regular asian and if so what was the argument not i don't find it so yeah i don't believe that at any point and we take exception with the department regulations or the department of education's interpretation of the tribulations i believe are our position is that in advance of that show cause order you know interpret ing it as a final order under the under the regs we have to be given an appellate process to tip to god yes or to it and that's i think one of the main points of our argument is that before the show cause order becomes public we have to be given the due process of correcting it and correcting things that are very simple like a date a date which invoked our governors and our students accusing us of fraud and if we were given that due process we believe that that date would have been corrected various items are really cation to new jersey to colorado that was approved all of the items listed in the show cause order were in fact approved over a series of approximately six years they would have all been addressed if we could have had that due process prior to the publication and that's our that's the college of physicians thank you thank you counsel