Hampton Univ. V. Accred. Council for Pharm. Edu.

• Decision Date: 17 April 2009
• Docket Number: Civil Action No. 4:09cv23.
• Citation: 611 F.Supp.2d 557
• Parties: HAMPTON UNIVERSITY, Plaintiff, v. ACCREDITATION COUNCIL FOR PHARMACY EDUCATION, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

Page 557

611 F.Supp.2d 557

HAMPTON UNIVERSITY, Plaintiff, v. ACCREDITATION COUNCIL FOR PHARMACY EDUCATION, Defendant.

Civil Action No. 4:09cv23.

United States District Court, E.D. Virginia, Newport News Division.

April 17, 2009.

Gilbert E. Schill, Jacob Harrison Rooksby, Nathan Adam Kottkamp, Stephanie Ploszay Karn, McGuirewoods LLP, Richmond, VA, Shepherd D. Wainger, McGuirewoods LLP, Norfolk, VA, for Plaintiff.

Michael A. Montgomery, Christina Ann MacIsaac, Bowman & Brooke LLP, Richmond, VA, Dale James Atkinson, Atkinson & Atkinson LLC, Northbrook, IL, for Defendant.

OPINION AND ORDER

JEROME B. FRIEDMAN, District Judge.

Currently before the court is plaintiff Hampton University's ("Hampton") motion for a preliminary injunction against defendant Accreditation Council for Pharmacy Education ("ACPE"). For the reasons stated herein, the court DENIES plaintiff's motion.

PROCEDURAL HISTORY

Hampton filed its complaint in this matter on March 3, 2009, challenging the procedural fairness of ACPE's January 2009 decision to place Hampton's School of Pharmacy (the "School") on probation with respect to its accreditation status. Although Hampton's complaint claimed that it was "entitled to a temporary restraining order" (Complaint ¶ 64), it neither requested one in its prayer for relief nor filed a motion seeking one. Instead, plaintiff filed the instant motion for a preliminary injunction over two weeks later, on March 19, 2009. On April 1, 2009, the court conducted a telephonic status conference with counsel for both parties to set the date for a hearing on the instant motion. The motion was fully briefed, and a hearing was held in connection with it on April 13, 2009.

In its complaint, Hampton claims that ACPE failed to follow its own rules in imposing probation on Hampton, essentially first announcing Hampton's alleged noncompliance with ACPE standards at the same time as it imposed probation on the basis of that alleged noncompliance, and giving Hampton less than six months to address ACPE's concerns before the next decision by ACPE about Hampton's accreditation status was to be made. Hampton also claims that ACPE denied Hampton "common law due process" by, inter alia, failing to provide Hampton with concrete numbers, quotas, or ratios for compliance with ACPE's quantitative faculty standards, treating Hampton differently than other similarly situated programs in terms of notice, the duration of probation, and the time afforded to become compliant; failing to provide Hampton with a meaningful hearing on the imposition of probation; and failing to provide Hampton with any method of appeal of the imposition of probation. Hampton further claims that ACPE acted arbitrarily and capriciously by putting the School on probation and deprived Hampton of its federally protected due process rights to a hearing and a method of appeal in violation of 42 U.S.C. § 1983. In the instant motion, Hampton requests that the court enter an injunction through a final hearing in this matter (1) enjoining ACPE from notifying, or requiring it to retract any existing notification to, the Secretary of Education of the School's probation; (2) enjoining ACPE from publishing, or requiring it to retract any existing publication of, the School's probation on its website or in its literature or other publications; (3) requiring ACPE to provide Hampton with "fair, consistent and objective standards for faculty recruitment and retention, together with a reasonable deadline for attainment" (Hampton's Motion for Preliminary Injunction ("Mot.") ¶ 3); (4) rescinding the School's probationary status; and (5) enjoining ACPE from revoking the School's accreditation for two years.

RELEVANT FACTS

The following relevant facts are either agreed in the parties' pleadings or drawn from the exhibits and witness testimony before the court at the hearing on the instant motion. The School has been fully accredited by ACPE since June 2002, and was never on probation prior to January 2009. According to ACPE's February 25-27, 2002 Evaluation Team Report (the "2002 Evaluation Report"), on the basis of which ACPE initially granted the School full accreditation for a period of two years, the School had at that time 26 full-time faculty members (including a Dean, an Associate Dean, and Chairs of Pharmacy Practice and Pharmaceutical Sciences), 1 parttime adjunct faculty member, and a total of 139 students in the School's professional program. Joint Consolidated Attachments Notebook for April 13, 2009 Hearing on Plaintiffs Motion for Preliminary Injunction (the "Joint Appendix" or "J.A.") Ex. 3 at 15-18; see also J.A. Ex. 4 (ACPE's June 27-30, 2002 Accreditation Action and Recommendations report (the "2002 A & R")).¹

As directed by ACPE's 2002 A & R—see J.A. Ex. 4 at 2—Hampton submitted a written report to ACPE in May 2003, which ACPE's staff analyzed. See J.A. Exs. 5 (Hampton's report), 6 (ACPE's staff analysis of it). By letter dated July 22, 2003, ACPE informed the School that its accreditation status was affirmed and acknowledged "the progress the school has made since the previous review," but also reiterated its earlier "concern regarding the number of vacant faculty positions." J.A. Ex. 7 at 1.

As contemplated by the 2002 A & R, ACPE conducted a more limited site visit at the School in November 2003. The November 11-12, 2003 Focused On-Site Evaluation Report (the "2003 On-Site Report") noted that "[s]ince 2002, the quantitative strength of the Department of Pharmacy Practice has decreased (16 to 12 FTE [full-time equivalents]) due to faculty resignations, while the number of professional year students has increased from 149 to 185." J.A. Ex. 8 at 5. The 2003 On-Site Report continues:

As a result, the team, based on interviews, believes that the faculty members are stressed by the increase in their workloads. . . . In addition to the need to replace the four open positions, as soon as possible, the team believes a minimum of two additional positions should be considered for the needs of the curriculum and to have additional flexibility, in the case of additional faculty turnover.

Id. The 2003 On-Site Report also noted, among other things, that

the team is concerned that the growth in the needed quantitative and qualitative strength of the experiential education program will be jeopardized if the needed new pharmacy practice faculty are not hired in a timely manner. The original plan for continued enrollment expansion to an entry class of 70 students should not be considered until the limiting aspects of the experiential program have been resolved.

Id. at 6. The 2003 On-Site Report continued to address these issues in further detail, reiterating that the "need for success in recruitment cannot be overemphasized, as the resultant stress on the faculty will likely lead to further turnover if the quantitative strength of the faculty is not increased." Id.; see also id. at 7-10.

By letter dated January 30, 2004, ACPE informed the School that the ACPE Board had postponed a decision on continuation of the School's accreditation to allow the School to prepare an Interim Report addressing, among other issues, "the quantitative strength of the faculty and the success of the present faculty recruitment efforts." J.A. Ex. 9 at 1. The letter also indicated that "the Board may choose to invite the Dean and the President to its June 23-27, 2004 meeting to discuss the report and its implications on program quality." Id. The School submitted the requested Interim Report to ACPE in April 2004, which ACPE's staff analyzed. See J.A. Exs. 10 (the School's Update Report), 11 (ACPE's staff analysis of it). Around this same time, ACPE also was aware that the School's founding dean announced that she would be departing from the School at the end of the 2003-04 academic year. J.A. Ex. 11 at 1.

ACPE's June 24-27, 2004 Accreditation Action and Recommendations report (the "2004 A & R") continued the School's accreditation only for one year, because, on the basis of the 2003 On-Site Report and the School's own Interim Reports, "the ACPE Board of Directors has grave concerns regarding the adequacy of faculty resources, including the provision of the experiential component of the curriculum, to provide a quality professional degree program given an increase in class size, particularly during this period of leadership change." J.A. Ex. 12 at 1. The 2004 A & R further noted that those "concerns are of such character as to impact upon prospects for continued compliance with accreditation standards and/or may result in non-compliance with accreditation standards if not adequately addressed thereby affecting the School's accreditation status." Id. at 1-2. The A & R reiterated those concerns in further detail in its "Comments and Recommendations." See id. at 2.

As directed by the 2004 A & R, the School filed another Interim Report with ACPE, discussing these and other issues, in November 2004, which ACPE's staff analyzed. See J.A. Exs. 13 (the School's Interim Report), 14 (ACPE's staff analysis of it). By letter dated February 1, 2005, ACPE informed the School that its accreditation status was affirmed at the January 2005 Board meeting. J.A. Ex. 15 at 1. Although the Board explicitly noted in the February 1, 2005 letter the "progress made by the School regarding faculty recruitment and retention" and "acknowledged the School's intention not to exceed 60 P4 students until resources and capacity are in place to comfortably deliver the experiential component of the curriculum," the Board also "expressed ongoing concern about future capacity for pharmacy practice experiences, and current and future faculty capacity." Id. The Board further reiterated that it "encouraged the School to continue efforts to expand the faculty (two additional positions as recommended by the evaluation team)." Id. The letter also instructed the School, among other things, to provide an update by April 2005...