Court won’t certify accreditation ruling for immediate appeal

Where Hampton University School of Pharmacy challenged the decision of the Accreditation Council for Pharmacy Education, or ACPE, to withdraw Hampton’s accreditation, and the court denied Hampton’s motion for summary judgment, it now refused to certify its ruling for immediate appeal. There was no controlling question of law on which there was substantial ground for differences of opinion.

Background

Hampton University School of Pharmacy is a non-profit university and a member of Historically Black Colleges and Universities. The ACPE is the exclusive accreditor of Doctor of Pharmacy programs in the United States. After a series of events, ACPE withdrew Hampton’s accreditation. Hampton exercised its right to appeal but the appellate commission affirmed ACPE’s decision to withdraw the accreditation.

On March 3, 2022, the court granted defendant’s motion for summary judgment in part as to Counts One, Two and related portions of Count Nine; denied defendant’s motion for summary judgment in part as to Count Three and denied plaintiff’s motion for summary judgment. On April 4, 2022, plaintiff filed a motion for certification of interlocutory appeal.

Controlling question of law

First, Hampton must demonstrate that the matter “involves a controlling question of law.” Hampton moves to certify the following question for interlocutory appeal: “Having found Plaintiff partially or totally noncompliant with Standard 17, whether ACPE’s multiple failures over multiple years to include an outline of the requirements for bringing Standard 17 into compliance, and its consequent violation of its own Policy 11.5.1, constitutes prejudicial error as a matter of law.”

The court agrees with ACPE that the resolution of Hampton’s proposed question requires a detailed examination of the factual record. To answer Hampton’s question, the Fourth Circuit would have to determine the prejudicial effect of ACPE’s failure to provide Hampton an outline to re-enter compliance.

In making the call on the prejudicial effect, the Fourth Circuit would necessarily inquire into the factual record to determine just how much ACPE’s decision not to provide an outline for re-compliance harmed Hampton and thus curbed its common law due process rights. These factual inquiries are exactly the ones that court of appeals are “unaccustomed and illsuited” to resolve on interlocutory appeal. Thus, Hampton’s question fails to qualify as a controlling question of law.

Difference of opinion

Hampton contends that, in the Fourth Circuit, “there is no case law as to what ‘generally invalid’ means or where the line between trivial violations … vs. fundamental violations … is, especially in the accreditation and common law due process contexts.” Even when construing Hampton’s question as narrowly as Hampton wishes the court to do, the court finds that there is no substantial ground for differences of opinion regarding the matter. The fact that the question is novel and unaddressed by the Fourth Circuit alone is not enough to create a substantial ground for differences of opinion sufficient to grant certification of an interlocutory appeal. Hampton fails to provide any case law that indicates contrasting or differing opinions on the prejudicial effect of an agency’s failure to comply with its own procedures in the accreditation context.

Material advancement

The court believes Hampton’s claims that resolution of the interlocutory appeal in its favor would likely save the need for a trial but finds it likely that Hampton’s remaining bias claim against ACPE will resolve prior to the conclusion of the interlocutory appeal. While a speedy interlocutory appeal may eliminate the need for a trial, the appeal would not “eliminate complex issues so as to simply trial” nor would it “make discovery easier and less costly.”

Plaintiff’s motion for certification of interlocutory appeal denied.

Hampton University v. Accreditation Council for Pharmacy Education, Case No. 4:20-cv-00118, Oct. 7, 2022. EDVA at Newport News (Young). VLW 022-3-465. 10 pp.