FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATIONAL UNIVERSITY OF HEALTH 

SCIENCES,

Plaintiff-Appellant,

v.

COUNCIL ON CHIROPRACTIC 

EDUCATION, INC.,

Defendant-Appellee.

No. 19-15352

D.C. No.

2:18-cv-01560-

NVW

ORDER AND 

OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted July 8, 2020

Portland, Oregon

Filed November 13, 2020

Before: Michael R. Murphy,* Mark J. Bennett, and

Eric D. Miller, Circuit Judges.

Opinion by Judge Murphy

* The Honorable Michael R. Murphy, United States Circuit Judge 

for the U.S. Court of Appeals for the Tenth Circuit, sitting by 

designation.
2 NUHS V. CCE

SUMMARY**

Accreditation

The panel filed: (1) an order granting a request for 

publication, recalling the mandate, and withdrawing a 

memorandum disposition and replacing it with an opinion; 

and (2) an opinion affirming in part the district court’s 

judgment denying the National University of Health 

Sciences relief from a decision of the Council on 

Chiropractic Education, Inc., and dismissing the appeal in 

part as moot.

The Council accredits chiropractic doctoral degree 

programs in the United States. It concluded that NUHS was 

not fully compliant with all accreditation standards but, 

nonetheless, reaffirmed its accreditation. At the same time, 

however, the Council notified NUHS it was placing its 

program on probation. NUHS raised common law due 

process claims, and the parties proceeded on the assumption 

that such a claim may be brought and that the arbitrary and 

capricious standard applies.

The panel expressed no opinion on the validity of 

common law due process claims challenging decisions 

relating to accreditation. To maintain recognition by the 

Secretary of Education, an accrediting agency must comply 

with 20 U.S.C. § 1099b, which requires the agency to 

consistently and evenhandedly apply and enforce standards 

of accreditation and afford due process to the programs it 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
NUHS V. CCE 3

accredits. NUHS asserted that the Council violated its due 

process rights because the Council’s accreditation standards 

did not permit it to grant reaffirmation of accredited status 

and, on the same record, impose probation. The panel held 

that because the Council’s accreditation standards 

contemplated situations in which a program can remain 

accredited even if it is not fully in compliance with all 

accreditation standards, the Council did not act arbitrarily 

and capriciously when it simultaneously reaffirmed NUHS’s 

accreditation and imposed probation. 

Under § 1099b, an accrediting agency must also 

establish and apply review procedures that comply with due 

process. The panel held that the Council complied with this 

requirement because it adequately apprised NUHS of its 

concerns regarding deficiencies and provided NUHS with 

multiple avenues to advocate for its position.

The panel concluded that NUHS’s final claim regarding 

national board exams was moot.

COUNSEL

James B. Hiller (argued), Gordon Rees Scully Mansukhani 

LLP, Chicago, Illinois; Julia K. Whitelock, Gordon Rees 

Scully Mansukhani LLP, Alexandria, Virginia; for PlaintiffAppellant.

Patrick G. Cooke (argued) and Eric J. Skwiat, Swanson 

Martin & Bell LLP, Chicago, Illinois, for DefendantAppellee.
4 NUHS V. CCE

ORDER

Defendant-Appellee’s request for publication, filed on 

October 19, 2020, is GRANTED. The original mandate that 

issued on September 10, 2020 is recalled. The memorandum 

disposition filed August 19, 2020 is withdrawn and replaced 

with an opinion filed concurrently with this order. Further 

petitions for rehearing or rehearing en banc may be filed 

pursuant to Ninth Circuit Rule 40-2.

OPINION

M. MURPHY, Circuit Judge:

Defendant, the Council on Chiropractic Education, Inc. 

(“CCE”), accredits chiropractic doctoral degree programs in 

the United States. Plaintiff, National University of Health 

Sciences (“NUHS”), runs a program accredited by CCE. 

When NUHS sought reaffirmation of its accreditation, CCE 

concluded NUHS was not fully compliant with all 

accreditation standards but, nonetheless, reaffirmed its 

accreditation. At the same time, however, CCE notified 

NUHS it was placing its program on probation.1 After 

NUHS’s appeal of the probation decision was denied by the 

CCE appeals panel, NUHS filed a complaint in federal court 

raising common law due process claims and seeking 

injunctive and declaratory relief. The district court denied 

relief and this appeal followed. Both parties proceed under 

1 On January 29, 2019, CCE removed the sanction of probation 

based on its review and evaluation of the progress NUHS made in the 

areas previously identified as noncompliant. Accordingly, this appeal is 

moot as to all of NUHS’s claims for injunctive relief from the imposition 

of probation.
NUHS V. CCE 5

the assumption that NUHS can bring a common law due 

process claim in this circuit and that the arbitrary and 

capricious standard is applicable to such a claim. See Prof’l 

Massage Training Ctr., Inc. v. Accreditation All. of Career 

Schs. & Colls., 781 F.3d 161, 172 (4th Cir. 2015) (holding a 

common law due process claim against an accrediting 

agency is cognizable and involves an inquiry into “whether 

the accrediting body’s internal rules provided a fair and 

impartial procedure and whether it followed its rules in 

reaching its decision” (internal quotation marks and 

alternations omitted)). We express no opinion on the validity 

of common law due process claims challenging decisions 

relating to accreditation. Our jurisdiction arises under 

28 U.S.C. § 1291, and we affirm in part and dismiss in part.

1. To maintain recognition by the Secretary of 

Education, an accrediting agency must comply with 

20 U.S.C. § 1099b. See also 34 C.F.R. Part 602. The statute, 

inter alia, requires the agency to consistently and 

evenhandedly apply and enforce standards of accreditation 

and afford due process to the programs it accredits. 

20 U.S.C. § 1099b(a)(4)(A), (a)(6). Consistent with the 

statute, CCE has adopted and published accreditation 

standards (the “Standards”). NUHS does not dispute that it 

was not in compliance with Standards §§ 2.A and 2.H at the 

time CCE reaffirmed its accreditation. Instead, it asserts 

CCE violated its due process rights by imposing the sanction 

of probation because the Standards do not permit CCE to 

grant reaffirmation of accredited status and, on the same 

record, impose probation.

NUHS has not identified any Standard specifically 

prohibiting CCE from placing a program on probation at the 

same time it reaffirms accreditation. To the contrary, CCE 

Standard § 1, III.A. provides a list of accreditation actions 
6 NUHS V. CCE

that CCE may take “at any time.” Among other things, this 

list includes reaffirming accreditation and imposing 

probation. Further, Standard § 1, V. permits CCE to take 

any of the following actions against a program that is not in 

compliance with all the Standards: (1) issue a warning, 

(2) place the program on probation, or (3) require the 

program to show cause why its accreditation should not be 

revoked. NUHS’s position is inconsistent with Standard 

§ 1, V. because it would foreclose CCE from taking any 

action against a noncompliant program short of revocation 

of accreditation.

Because the Standards contemplate situations in which a 

program can remain accredited even if it is not fully in 

compliance with all accreditation standards, CCE did not act 

arbitrarily and capriciously when it simultaneously 

reaffirmed NUHS’s accreditation and imposed probation.

2. An accrediting agency must also establish and apply 

review procedures that comply with due process. 20 U.S.C. 

§ 1099b(a)(6)(A). This includes providing “written 

specification of any deficiencies identified at the institution 

or program examined”; providing “sufficient opportunity for 

a written response by an institution or program regarding any 

deficiencies identified by the agency, to be considered by the 

agency within a timeframe determined by the agency, and 

before any adverse action is taken”; and notifying a program 

“in writing of any adverse accrediting action or an action to 

place the institution or program on probation or show cause.” 

34 C.F.R. § 602.25(c)–(e). According to NUHS, CCE 

imposed the sanction of probation without first providing 

written notification of any deficiencies and without 

providing the opportunity to submit a written response. 

NUHS alleges it did not receive written notification from 
NUHS V. CCE 7

CCE “prior to CCE’s February 2, 2018 letter notifying 

NUHS that CCE was placing NUHS on Probation.”

CCE Standard § 1, V.B. states that “[p]robation is an 

action reflecting the conclusion of [CCE] that a program is 

in significant noncompliance with accreditation standards or 

policy requirements.” NUHS’s position improperly 

conflates CCE’s actions with its conclusions. Although 

CCE concluded on February 2, 2018, that NUHS was not in 

compliance with the Standards, it did not take any action 

against NUHS on that date. Instead, in conformity with CCE 

Policy 8, NUHS’s status “remain[ed] unchanged” until the 

CCE appeal process ended.

The CCE site team identified deficiencies2 in NUHS’s 

compliance with the Standards and NUHS was given the 

opportunity to respond in writing to the site team’s final 

report. CCE and NUHS representatives also discussed the 

areas of concern identified by the site team at a status review 

meeting. Additionally, NUHS was notified in writing of 

CCE’s conclusion that probation was appropriate and was 

given the opportunity to appeal that proposed action before 

it became final. The record shows that CCE adequately 

apprised NUHS of its concerns regarding noncompliance 

with Policy 56, and Standards §§ 2.A and 2.H, and provided 

NUHS with multiple avenues to advocate for its position. 

Thus, CCE’s decision to impose probation was not arbitrary 

and capricious and did not violate CCE’s obligation to apply 

2 “Concern” is defined in the final site team report as “a conclusion 

of the CCE Site Team that there is a deficiency, major to minor, in 

meeting the Standards to which the comment is connected.” For due 

process purposes, it is irrelevant that the CCE site team is not authorized 

to make a final determination that a program is not in compliance with 

the Standards.
8 NUHS V. CCE

review procedures consistent with due process. 20 U.S.C. 

§ 1099b(a)(6)(A).

3. NUHS’s final claim involves CCE Policy 56 which 

requires a program to “disclose up-to-date results of student 

performance on national board examinations and completion 

rates on the program website.” Relevant to the issue raised 

by NUHS, a program must “post annually the overall 

weighted average of the four (4) most recent years’ NBCE 

Parts I, II, III, and IV Exam success rates.” Policy 56 further 

provides that “[t]he overall weighted average of the four (4) 

most recent years’ NBCE Parts I, II, III, and IV Exam 

success rates must not be less than 80%.” One of NUHS’s 

campuses is located in Illinois and until 2016, Illinois did not 

require chiropractic licensure applicants to take Part IV of 

the NBCE exam. In its complaint, NUHS alleged that CCE 

failed to apply Policy 56 with an “even hand” because it 

required NUHS to report any NUHS graduate who did not 

take Part IV of the NBCE exam as having failed the exam. 

CCE based its decision to impose the sanction of probation, 

in part, on NUHS’s failure to meet the Policy 56 benchmark 

of eighty percent.

On January 29, 2019, CCE removed the sanction of 

probation based on NUHS’s noncompliance with CCE 

Standards §§ 2.A and 2.H, but retained the concern 

regarding Policy 56 and required further reporting. On July 

25, 2019, however, CCE informed NUHS “that its current 

4-year overall weighted average NBCE success rate (80%) 

meets the threshold established in CCE Policy 56.” Based 

on NUHS’s compliance with Policy 56, CCE determined no 

further action or reporting was required by NUHS.

Effective July 1, 2016, the Illinois Medical Practice Act 

of 1987 (as amended) added Part IV of the NBCE exam to 

the licensure requirements for chiropractic physicians. See
NUHS V. CCE 9

68 Ill. Admin. Code § 1285.60(b)(1). NUHS concedes in its 

opening appellate brief that “NBCE exam results preceding 

the change in Illinois’ licensure requirement” only remained 

a part of the Policy 56 calculation until July 1, 2020. 

Because NUHS has no further reporting obligations with 

respect to NBCE exams administered before the change in 

Illinois law, its appeal from the denial of injunctive relief 

prohibiting CCE from enforcing Policy 56 is moot. See San 

Lazaro Ass’n, Inc. v. Connell, 286 F.3d 1088, 1095–96 (9th 

Cir. 2002). NUHS’s appeal from the denial of a declaratory 

judgment that Policy 56 cannot be applied to NUHS without 

violating common law due process principles is also moot. 

See Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125, 1129 

(9th Cir. 2005).

The judgment of the district court is AFFIRMED as to 

the court’s conclusion that CCE did not violate NUHS’s 

common law due process rights (1) by imposing a sanction 

of probation while contemporaneously reaffirming NUHS’s 

accreditation status and (2) by providing NUHS with notice 

and opportunity to respond to identified deficiencies in the 

manner described. The remainder of the appeal is 

DISMISSED as moot.