International Junior College of Business & Technology, Inc. v. Duncan

United States Court of Appeals
For the First Circuit

No. 13-2547

INTERNATIONAL JUNIOR COLLEGE OF BUSINESS AND TECHNOLOGY, INC.,
d/b/a International Junior College;

L'IMAGE EDUCATIONAL CORP.,
d/b/a Rogie's School of Beauty Culture,

Plaintiffs, Appellants,

v.

ARNE DUNCAN, in his official capacity as
Secretary of the United States Department of Education,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Bruce J. McGiverin, Magistrate Judge]

Before

Thompson, Kayatta, and Barron,
Circuit Judges.

Ronald L. Holt, with whom Matthew L. Hoppock and Dunn &
Davison LLC, were on brief, for appellants.
Rosa E. Rodríguez-Vélez, United States Attorney, with whom
Nelson Pérez-Sosa, Assistant United States Attorney, and Jennifer
L. Woodward, Office of the General Counsel, United States
Department of Education, were on brief, for appellee.
September 16, 2015
 THOMPSON, Circuit Judge. The United States Department

of Education ("DOE") Secretary decided through an administrative

proceeding that International Junior College of Business and

Technology, Inc. ("International") could not participate in

certain federal student financial assistance programs because the

school failed to comply with a requirement that for-private

colleges derive at least 10 percent of their revenue from some

source other than federal student aid. International brought suit

under the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et

seq., in Puerto Rico district court to challenge the decision, but

this effort was unsuccessful, as the court dismissed

International's claims on summary judgment. Now, International

asks us to take another look at the agency's decision, arguing

that the DOE Secretary erred in several respects.

We disagree, and so for the reasons discussed below, we

affirm the court's summary judgment dismissal of International's

claims.1

BACKGROUND

These facts are not disputed by the parties, unless

otherwise noted. From 2005 to 2008, the relevant timeframe for

this case, Title IV of the Higher Education Act of 1965, 20 U.S.C.

1
The parties consented to conducting all the proceedings
before a magistrate judge. Therefore, we review the magistrate
judge's decision as a final judgment of the court. Fed. R. Civ.
P. 73(c).

- 3 -
§ 1070, et seq. ("Title IV"), authorized the federal post-secondary

student aid loan and grant programs.2 Under Title IV, students

who were enrolled in qualifying educational programs at eligible

post-secondary institutions and who met certain eligibility

requirements could receive federal loans and grants to help pay

for their tuitions. The schools, however, were given direct access

to the students' funds and were in charge of disbursing the funds

to students.

Under Title IV, for-profit, post-secondary educational

institutions ("proprietary institutions of higher education") were

permitted to participate in the Title IV aid programs if they met

certain requirements. One such requirement was that they had to

earn "at least 10 percent of [their] revenues from sources that

are not derived from funds provided under [Title IV]." 20 U.S.C.

§ 1002(b)(1)(F)(2003). This requirement was known as the "90/10

rule", and according to the DOE, was enacted "to require

proprietary institutions to attract students based upon the

quality of their programs, not solely because the institutions

2 The statute and some of the relevant implementing
regulations have been amended multiple times, but the parties do
not dispute that the regulations as they existed from 2005 to 2008
govern this case. The Higher Education Act was also reauthorized
in 1998, and some portions were re-codified. We use the citations
to the code as they existed during the relevant time period.

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offer Federal student financial assistance."3 Institutional

Eligibility Under the Higher Education Act of 1965, as Amended, 59

Fed. Reg. 6446-01, 6448 (Feb. 10, 1994). "Thus, under the statute,

these institutions must attract students who will pay for their

programs with funds other than Title IV . . . program funds." Id.

While the Title IV statute set out some of the

requirements for the 90/10 rule, it also charged the DOE Secretary

with implementing regulations to address (among many other things)

the standards for proprietary institutions' compliance with the

90/10 rule (and the DOE's enforcement of same). See 20 U.S.C. §§

1002(b)(1)(F), 1094(c)(1999). So, the DOE Secretary promulgated

numerous regulations to ensure proprietary institutions' adherence

to the 90/10 rule and to ensure the institutions were appropriate

fiduciaries for disbursing the students' funds. See 34 C.F.R. §§

668.23(d), 668.82. For instance, participating institutions were

required to submit annual financial audits to the DOE, which had

to be completed by independent accountants. The auditors were

specifically required to certify that the school derived at least

10 percent of its revenue from sources other than Title IV

programs. The regulations also provided a formula the schools had

3The statute was originally enacted as the 85/15 rule, but
was amended to the 90/10 rule in 1998. See Pub. L. No. 105-244,
§ 102(b)(1)(F), 112 Stat. 1581, 1588 (codified at 20 U.S.C. §
1002).

- 5 -
to use to calculate their revenues. Specifically, an institution

only satisfied the 90/10 requirement if the Title IV funds the

school received equaled 90 percent or less of "[t]he sum of

revenues including [Title IV] program funds generated by the

institution from: tuition, fees, and other institutional charges

for students enrolled in [Title IV] eligible programs . . . ." 34

C.F.R. § 600.5(d)(1)(1999).

Failure to comply with the 90/10 rule meant a school

would lose its Title IV eligibility, but the loss of eligibility

only became effective the fiscal year following the non-compliant

fiscal year (we note that the fiscal year ran from July 1 to June

30). See 34 C.F.R. § 600.40(a)(2)(1998). A non-complying school

also could not become eligible to participate in Title IV again

until it "demonstrate[d] compliance with all eligibility

requirements for at least the fiscal year following the [non-

compliant] fiscal year . . . ."4 34 C.F.R. § 600.5(g)(1999). The

rule's enforcement was also retroactive, meaning that when the DOE

made a final assessment of a school's noncompliance with the rule,

with limited exceptions, the school would have to pay back any

Title IV funds it received during any year it was ineligible. See

4
This rule has since been amended, and now requires the
institution to fail compliance with the 90/10 rule for two years
before it loses Title IV eligibility. See 34 C.F.R. §
668.28(c)(1)(2010).

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id.; 34 C.F.R. § 668.26(d). Therefore, if a school failed the

90/10 requirement in, say, the year that ran from July 1, 2004

through June 30, 2005, it was no longer Title IV-eligible as of

July 1, 2005. The school would also have to repay any Title IV

funds it received from July 1, 2005 through June 30, 2006. The

regulations also relied on schools to self-report to the DOE any

non-compliance with the 90/10 requirement.

Naturally, the DOE reviewed the audit reports the

institutions submitted, after which the DOE prepared its own "final

audit determination," or "FAD." In a FAD, the DOE would notify an

institution if it concluded that a school had violated any Title

IV expenditure laws, and, if so, whether the school would be

required to refund any Title IV funds it should not have received

during a non-compliant year. The institutions could appeal these

final audit determinations to the agency by requesting an

administrative hearing before an agency hearing officer. If an

institution was dissatisfied with the hearing officer's decision,

it could then appeal to the DOE Secretary.

International and Its Title IV Woes

International was a for-profit community college based

in Puerto Rico.5 The school operated four campuses on the island,

5
We could not discern from the (voluminous) record exactly
when International opened, but it appears the school existed since
at least 1991.

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offering non-degree programs (e.g., allied health, technology, and

cosmetology) and associate degree programs. According to

International, for a while, all of its educational programs

qualified for Title IV funding (and, as will become apparent, much

of the school's funding ended up coming from Title IV aid).6

According to International, most of its students received Title IV

grant funding to pay their tuitions.

In early May 2006, International submitted to the DOE

its independent auditor's report for the fiscal year ending June

30, 2005, wherein the auditor certified that the school had

received exactly 90 percent of its revenues from Title IV programs.

But shortly after the audit was submitted, the DOE noticed in a

footnote in the auditor's report that International had actually

received 90.26 percent of its revenues from Title IV funds, and

that the auditor had rounded the figure down to 90 percent.

According to the DOE, this rounding practice was not permitted,

and the DOE informed International of same in a letter dated May

8, 2006.

The letter also informed International that because it

had exceeded the 90 percent threshold, it would be placed on

"Heightened Cash Monitoring 2" funding, or "reimbursement

6 It's also hard to tell from the record when all of
International's programs became Title IV-certified, but we know
that a number of them qualified since at least 1991.

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funding," effective immediately, until the DOE could complete its

full review of International's financials.7 This meant the school

could no longer receive the usual upfront disbursement for its

students' Title IV aid, and would instead have to make funding

disbursements to students from its own cash, and then submit a

reimbursement request. According to International, it received

"very few Title IV funds" from that point on; in fact, the school

was only able to stay afloat through the fall semester because

sometime between May and December 2006, one of its shareholders

loaned the school $1.5 million to front the aid disbursements made

to students.

Sometime in the next few months, the DOE completed its

full review of International's Title IV eligibility, and in a

letter dated November 8, 2006, notified International that because

the school had not complied with the 90/10 rule during the fiscal

year ending June 30, 2005 (i.e., fiscal 2005), and did not timely

submit audits for either that year or the year prior, the DOE was

denying the school's application to renew its Title IV

participation for fiscal 2006. Thus, according to the letter,

International's Title IV eligibility lapsed on July 1, 2005 (the

first day of fiscal 2006). The letter also informed International

7Since September 2002, the school was already on probationary
Title IV eligibility status for a different violation (an issue
with its past loan default rates).

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that it could dispute the DOE's decision by demonstrating that the

DOE's reasons for rejecting the recertification application were

flawed.

International responded to the letter, but did not

challenge the DOE's findings. In fact, International conceded

that "its 2004 and 2005 audits were filed late, and that its fiscal

2005 Title IV revenue exceeded 90% of all of its relevant tuition

revenue." Still, International asked the DOE to reconsider the

decision not to renew the school's Title IV certification, and to

adopt one of the several repayment plans International proposed;

without Title IV aid, the school would have to close, International

asserted.

The DOE declined, and in December 2006, informed

International in another letter that it would not reconsider at

that time its decision to deny the recertification application.

The letter also stated that International would have to repay an

estimated $1.4 million the school received during fiscal 2005 (the

year it was Title IV-ineligible), and could not participate in

Title IV again unless (and until) it not only repaid the liability,

but also demonstrated that it "met the 90/10 Rule in a subsequent

year." The letter reminded International that the DOE still had

to "establish the exact amount of International's liability," so

International was required to engage an auditor to conduct a

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"closeout" audit of all the funds International had received up to

July 1, 2006.

Apparently out of cash, the school closed in December

2006 (and, according to the DOE, without ever submitting a closeout

audit). After a deal to sell the school fell through,8 in August

2007, DOE made a final audit determination against International,

concluding that International was not Title IV-eligible for the

year ending June 30, 2006 for failing to comply with the 90/10

rule in the prior fiscal year. The DOE also determined that

International was liable for the more than $1.3 million in Title

IV funds that it received after July 1, 2005.9

The Administrative Appeals

International appealed the FAD, and after a hearing, an

administrative law judge affirmed the decision that International

violated the 90/10 rule. The hearing officer concluded that 90.34

percent of International's fiscal 2005 revenues derived from Title

IV sources. Relying on 34 C.F.R. § 600.5(d), the hearing officer

determined that the school could not include as "revenue" in its

90/10 calculation the cash payments made by students "who take

8 According to International, the buyer pulled out because
the DOE took too long to assess the total amount of the liabilities
International owed.

9 Since International did not submit its fiscal 2005 audit
until May 2006, and thus was not placed on Heightened Cash
Monitoring until May 2006, the school had received upfront Title
IV funds from July 1, 2005 to May 2006.

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only one course at a time on a Saturday," as those students were

not enrolled in a half- or full-time academic program.

International appealed the hearing officer's decision to

the DOE Secretary, arguing that the officer's "interpretation of

[34 C.F.R. § 600.5(d)(1)] is overly restrictive" because the

regulation "permits an institution to include revenue from

students taking courses in Title IV-eligible programs on a less

than a [sic] half-time basis." The Secretary concluded that

whether or not a student was enrolled in a Saturday course was

irrelevant; rather, what mattered was whether the student was also

enrolled in a Title-IV eligible program. The Secretary therefore

remanded the case back to the hearing officer to conduct additional

factfinding as to how many students at International were actually

enrolled in a Title-IV eligible program.

On remand, the administrative judge affirmed again,

finding that International presented "no convincing evidence" that

the "Saturday-only students [were] enrolled in any Title IV-

eligible programs."

International appealed (again) to the Secretary, and on

this second appeal, raised an additional argument -- that even if

the Secretary were to agree with the hearing officer that

International violated the 90/10 rule, the Secretary should allow

International to remedy the violation (and also forgive the $1.3

- 12 -
million liability), as he did in his recent decision concerning

another school in a similar circumstance.10

This go-round, though, the Secretary affirmed, rendering

the final audit determination a final agency action. While the

Secretary questioned the adequacy of the hearing officer's

factfinding, he nonetheless affirmed the 90/10 determination

because International did not "straightforwardly challenge [the

hearing officer's] fact-finding." The Secretary also declined to

forgive International's liability, concluding that International's

case was too distinguishable from the case it was relying on to

request that remedy.11

This Lawsuit

Still dissatisfied, International brought an APA action

in the Puerto Rico district court,12 asking for a declaratory

judgment that the DOE's final audit determination was arbitrary

and capricious, as well as a stay on the DOE's enforcement of the

10International also made additional arguments that are not
relevant to this appeal.

11 The Secretary assumed without deciding that this issue,
which wasn't raised on the first appeal to him, was properly
preserved.

12 The APA provides that "[a] person suffering legal wrong
because of agency action, or adversely affected or aggrieved by
agency action within the meaning of a relevant statute, is entitled
to judicial review thereof." 5 U.S.C. § 702.

- 13 -
FAD.13 Specifically, International made the following relevant

claims: (1) the DOE Secretary acted arbitrarily and capriciously

because he would not forgive International's 90/10 violation, even

though he did forgive a "similarly situated" school's 90/10

violation; (2) the DOE's 90/10 determination against International

was incorrect because the calculation improperly excluded the

revenue from the students enrolled in the Saturday-only courses;

and (3) the DOE should have allowed International to cure its 90/10

default.14

The case ensued, and International moved to compel the

DOE to produce documentation of the policies and procedures leading

to its decision, but a magistrate judge denied that request.

Relying on the administrative record, the DOE then moved for

summary judgment, asking the court to dismiss International's

complaint. International also moved for summary judgment in its

favor. The magistrate judge granted the DOE's motion and denied

International's, thus dismissing the action. Specifically, the

13An additional plaintiff, L'Image Educational Corp., was not
involved in this matter, but because the DOE could impose
International's liabilities on L'Image based on the companies'
ownership structure, see 34 C.F.R. §§ 668.15(c)(2006),
668.174(b)(2002), it was named as a plaintiff in the suit.

14International also brought a fourth claim -- that the DOE
acted arbitrarily and capriciously by taking too long to assess
the school's total liabilities, thus prompting the anticipated
buyer of the school to terminate the deal. But International does
not pursue this claim before us.

- 14 -
magistrate judge found that the Secretary's definition of

"revenues" was reasonable; that the Secretary's affirmance of the

FAD was not an abuse of discretion; and that the Secretary did not

err in rejecting International's attempts to cure its 90/10

violation.

This timely appeal followed.

STANDARD OF REVIEW

We review a trial court's grant of summary judgment de

novo. Morón-Barradas v. Dep't of Educ., 488 F.3d 472, 478 (1st

Cir. 2007). But when reviewing an agency decision, "[b]ecause

both the district court and this court are bound by the same

standard of review, . . . our review . . . is . . . in effect,

direct review of the [agency's] decision." Atieh v. Riordan, No.

14-1947, 2015 WL 4855786, at *2 (1st Cir. Aug. 14, 2015).

The summary judgment "rubric" also "has a special twist

in the administrative law context." Associated Fisheries of Me.,

Inc. v. Daley, 127 F.3d 104, 109 (1st Cir. 1997). When, as here,

the governing statute "incorporates the familiar standard of

review associated with the Administrative Procedure Act,"

"judicial review, even at the summary judgment stage, is narrow."

Id. That is because "the APA standard affords great deference to

agency decisionmaking," and "the Secretary's action is presumed

valid." Id. Thus, "a court may set aside an administrative action

only if that action is arbitrary, capricious, or otherwise contrary

- 15 -
to law." Id.; 5 U.S.C. § 706(2)(A). In other words, we "focus on

whether the agency examined the relevant data and articulated a

satisfactory explanation for its action including a rational

connection between the facts found and the choice made." Sistema

Universitario Ana G. Mendez v. Riley, 234 F.3d 772, 777 (1st Cir.

2000) (citation and alterations omitted).

DISCUSSION

International's appellate claims fall into three camps.

First, International argues that the DOE regulations, as

promulgated, wrongly interpreted the 90/10 rule because their

definition of "revenues" was too narrow for purposes of calculating

a school's 90/10 compliance. Even if the regulations were valid,

International argues, the Secretary arbitrarily and capriciously

applied them to International's case, and so the DOE's 90/10

assessment was improper. Second, International claims that even

if the agency's 90/10 calculation were correct, the Secretary

should have let International try to cure its default. And third,

International argues that the magistrate judge erred by denying it

the chance to conduct discovery.

We address each of International's arguments.

A. The Secretary's 90/10 Calculations

As we noted above, International first argues that in

promulgating the implementing regulations, the Secretary did not

correctly interpret the 90/10 statutory provision, 20 U.S.C. §

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1002(b)(1)(F)(2003). We will delve into the particulars of

International's claim in a little bit, but generally,

International argues that the DOE regulations improperly excluded

certain types of tuition revenue in the 90/10 calculus and that if

the regulatory definition of "revenues" was not so narrow,

International would have fallen below the 90 percent threshold.

As we mentioned above, Title IV requires that a

proprietary institution ensure that "at least 10 percent of the

school's revenues [come] from sources that are not derived from

funds provided under [Title IV], as determined in accordance with

regulations prescribed by the Secretary." 20 U.S.C. §

1002(b)(1)(F)(2003). And the regulations "prescribed by the

Secretary" provided that:

An institution satisfies the [90/10]
requirement . . . by examining its revenues
under the following formula for its latest
complete fiscal year:

[Title IV] program funds the institution used
to satisfy its students' tuition, fees, and
other institutional charges to students

[divided by]

[t]he sum of revenues including [Title IV]
program funds generated by the institution
from: tuition, fees, and other institutional
charges for students enrolled in [Title IV]
eligible programs as defined in 34 CFR 668.8;
and activities conducted by the institution,
to the extent not included in tuition, fees,
and other institutional charges, that are
necessary for the education or training of its

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 students who are enrolled in those eligible
programs.

34 C.F.R. § 600.5(d)(1)(1999). In other words, according to the

regulations, only the funds the school generated from students

enrolled in Title IV programs (and not from the whole student body)

could be used to calculate a school's total "revenues."

International argues that this regulation constitutes an

erroneous interpretation of the term "revenues," as it was used in

the Title IV statute, because "revenues," taking its ordinary

meaning, "would include all non-title IV income received for

tuition . . . regardless of its source." Specifically,

International wanted the DOE to include the cash payments it

received from the students enrolled in the individual Saturday

courses, even if they were not necessarily enrolled in an academic

program.

The Supreme Court's two-step framework, as laid out in

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837 (1984), directs our review of this claim. When

reviewing an agency's interpretation of a federal statute, we first

look to see if "Congress has directly spoken to the precise

question at issue." Id. at 842. "If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously expressed intent

of Congress." Id. at 842-43 (footnote omitted). "If, however,

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the court determines Congress has not directly addressed the

precise question at issue, the court does not simply impose its

own construction on the statute, as would be necessary in the

absence of an administrative interpretation." Id. at 843 (footnote

omitted). "Rather, if the statute is silent or ambiguous with

respect to the specific issue, the question for the court is

whether the agency's [action] is based on a permissible

construction of the statute." Id. And when Congress explicitly

leaves "a gap for the agency to fill, there is an express

delegation of authority to the agency to elucidate a specific

provision of the statute by regulation." Id. at 843-44. These

"legislative regulations are given controlling weight unless they

are arbitrary, capricious, or manifestly contrary to the statute."

Id. at 844.

In stating that "at least 10 percent of the school's

revenues" had to come "from sources that are not derived from funds

provided under [Title IV], as determined in accordance with

regulations prescribed by the Secretary," 20 U.S.C. §

1002(b)(1)(F)(2003) (emphasis added), we construe the statute as

specifically delegating to the agency the responsibility of

defining "revenues". But International simply ignores the latter

part of the statute, failing to argue why we should not read the

statute this way. Left to our own devices, we see no reason why

we should not (particularly because we do not see what purpose the

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"as determined in accordance with regulations prescribed by the

Secretary" language would otherwise have). See Corley v. United

States, 556 U.S. 303, 314 (2009) (noting that statutes should be

"construed so that effect is given to all provisions, so that no

part will be inoperative or superfluous, void or insignificant").

Thus, the relevant question here is whether the regulation's

definition was "arbitrary, capricious, or manifestly contrary to

the statute." Chevron, 467 U.S. at 844.

International does not directly address this part of the

Chevron inquiry, but does (scantly) argue that the definition of

"revenues" should have been more broad because Congress intended

to "put pressure on schools like International to attract students

willing to pay out of pocket for education based on the quality of

education that school provides," and so "cash payments from

students willing to pay out of pocket for individual courses

certainly ties directly to Congress' intent to identify the quality

of an institution's education by requiring that some of its tuition

revenues come from sources other than the Title IV programs." But

International, while proffering a potential alternative

definition, does nothing to address the actual legal standard --

that is, whether the definition of "revenues" that the Secretary

chose, and implemented via regulation, was unreasonable or

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otherwise contrary to Congressional intent.15 Chevron, 467 U.S.

at 845 ("If [an administrative interpretation] represents a

reasonable accommodation of conflicting policies that were

committed to the agency's care by the statute, we should not

disturb it unless it appears from the statute or its legislative

history that the accommodation is not one that Congress would have

sanctioned.").

International arguably waived this argument by failing

to develop it. See United States v. Zannino, 895 F.2d 1, 17 (1st

Cir. 1990). Waiver aside, we think International's claim falters

on the merits. Clearly the statutory term "school's revenues"

cannot mean literally all revenues of any type (such as, for

example, donations, licensing fees, grants, etc.). Given the need

to draw a line, and Congress's aim to have institutions demonstrate

a private market demand for the subsidized programs at proprietary

institutions, the exclusion of tuition payments by persons picking

and choosing only parts of the eligible Title IV programs rather

than the actual program itself would seem to be within the

15
International does direct us to some statements made by
several Congressmen purportedly questioning whether the
Secretary's definition of "revenues" was overly restrictive. But,
as International concedes, these statements were made after the
statute was enacted. As the Supreme Court has said, "[p]ost-
enactment legislative history (a contradiction in terms) is not a
legitimate tool of statutory interpretation . . . [because it] by
definition could have had no effect on the congressional vote."
Bruesewitz v. Wyeth LLC, 562 U.S. 223, 242 (2011) (citation
omitted).

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boundaries of a non-arbitrary line that comports with the statute's

intent. See Career Coll. Ass'n v. Riley, 70 F.3d 637 at *2 (D.C.

Cir. 1995) (per curiam) (unpublished) ("It is reasonable to infer

. . . that when Congress added the 15% requirement it intended to

ensure higher quality in the very programs it was subsidizing under

that title, namely the eligible ones.").

Application of the Regulations

Moving from the general to the specific, we next address

International's claim that the DOE misapplied the 90/10

regulations in this case. Despite the fact that International

admitted early on in the administrative proceedings that it

violated the 90/10 rule, International now insists that the DOE

should have included in its calculations of International's total

income the cash tuition payments the school received from students

who were enrolled in the individual Saturday courses (even if the

students were not necessarily enrolled in a degree or non-degree

program), and that if the DOE had considered those payments, its

revenues from non-Title IV sources would have exceeded 10 percent

of the school's total income.

As we explained above, the Secretary's regulation

defined a school's overall "revenues," in relevant part, as those

funds deriving from "tuition . . . for students enrolled in

eligible programs as defined in 34 C.F.R. § 668.8." 34 C.F.R. §

600.5(d)(1)(1999). And 34 C.F.R. § 668.8 defined "eligible

- 22 -
programs" as those programs that required a certain minimum number

of weeks and hours of instruction and prepared students for

"gainful employment in a recognized occupation." 34 C.F.R. §

668.8(d)(1)(iii)(1987).16 Recognizing that an individual course

did not meet the regulation's definition of an "eligible program,"

International nonetheless argues that because the courses were

creditable toward a degree program, the income derived from them

16 34 C.F.R. § 668.8(d)(1987) provided:

An eligible program provided by a proprietary
institution of higher education or
postsecondary vocational institution—

(1)(i) Must require a minimum of 15 weeks of
instruction, beginning on the first day of
classes and ending on the last day of classes
or examinations; (ii) Must be at least 600
clock hours, 16 semester or trimester hours,
or 24 quarter hours; (iii) Must provide
undergraduate training that prepares a student
for gainful employment in a recognized
occupation; and (iv) May admit as regular
students persons who have not completed the
equivalent of an associate degree;

(2) Must . . . (i) Require a minimum of 10
weeks of instruction, beginning on the first
day of classes and ending on the last day of
classes or examinations; (ii) Be at least 300
clock hours, 8 semester or trimester hours, or
12 quarter hours; (iii) Provide training that
prepares a student for gainful employment in
a recognized occupation; and (iv)(A) Be a
graduate or professional program; or (B) Admit
as regular students only persons who have
completed the equivalent of an associate
degree.

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should have been included as "revenue." International argues that

DOE precedent demands this conclusion.

The precedent International relies on is a single

administrative decision, Sinclair Community College, U.S. Dep't of

Educ., No. 89-21-S, 75 Educ. L. Rep. 1296 (May 31, 1991) (aff'd by

the Sec'y, Sept. 26, 1991), where the DOE held that even if a

student had not yet declared a major, her tuition payments would

still be considered revenue for Title IV purposes if she was

enrolled in an eligible program. To be sure, "[d]eparture from

agency precedents embodied in prior adjudicative decisions can

constitute an abuse of discretion if the reasons for the failure

to follow precedent are not explained." River St. Donuts, LLC v.

Napolitano, 558 F.3d 111, 117 (1st Cir. 2009). But even if we

assume, without deciding, that Sinclair has precedential value in

this case,17 Sinclair would not help International -- the school

in Sinclair "verif[ied] that its students were enrolled in programs

of study leading to a degree or certificate," and the students

simply had not yet declared a major. Sinclair, 75 Educ. L. Rep.

1296. Here, International has not asserted that the students

enrolled in the individual courses were "enrolled in programs of

17An issue we need not address given our holding that Sinclair
is inapposite, the DOE argues that Sinclair cannot be applied here
at all because it actually predated the existence of the 90/10
rule, and so its holding could not have been intended to extend to
application of the 90/10 regulations.

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study leading to a degree or certificate," so we do not see how

Sinclair is even persuasive -- a distinction certainly exists

between students taking just one course and students who have

already committed to a whole program. Given that International

makes no other arguments as to how the DOE misapplied the

regulations in determining that International had violated the

90/10 rule, we conclude that the Secretary did not abuse his

discretion in this regard.

B. International's Attempts to Cure

Next, International argues that the Secretary erred in

rejecting its attempts to cure its 90/10 violation because one,

the Title IV statute required the Secretary to give the school an

opportunity to fix its mistake, and two, the Secretary's decision

was inconsistent with his prior treatment of a similarly situated

school, which he did allow to cure its 90/10 violation.

The DOE Secretary's 2009 decision in Gibson Barber &

Beauty College provides the backdrop for this set of arguments.

In 2005, the DOE issued a final audit determination against

Mississippi-based Gibson Barber & Beauty College ("Gibson") for

violating the 90/10 rule in fiscal 2002. See U.S. Dep't of Educ.,

No. 05-49-SA (Nov. 25, 2009). The DOE determined that the school

had derived 92 percent of its revenue from Title IV sources

(exceeding the 90 percent threshold by $3,850) and sought the

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return of about $186,000 of Title IV funds the school had received

the following year, fiscal 2003. Id. at *2.

In appealing the FAD to a hearing officer, Gibson pointed

out that because the school anticipated in 2002 that it would not

comply with the 90/10 rule, that same year, the school's owner

loaned the school $3,850 (which she later converted to a donation)

with the purpose of making the school 90/10-compliant. Id. The

hearing officer determined, however, that donations did not

constitute an acceptable source of revenue, as defined by the

regulations, and therefore, the school still had not complied with

the 90/10 rule during the 2002 fiscal year. Id. at *1-2. Thus,

the hearing officer concluded, Gibson was liable for the $186,000

it received in fiscal 2003. Id.

Gibson appealed to the DOE Secretary. Id. The Secretary

reversed the FAD, concluding that although the donation did not

count as revenue, "requiring [Gibson] to repay $186,958 because

[it] exceeded the 90/10 calculation by $3,850 is not in accord

with [Gibson's] effort to execute corrective measures to bring the

institution within compliance of the 90/10 rule." Id. at *2. The

Secretary relied on 34 C.F.R. § 668.113(d),18 which he interpreted

18 34 C.F.R. § 668.113(d) (1998) provided:

(1) If an institution's violation that
resulted in the final audit determination . .
. results from an administrative, accounting,
or recordkeeping error, and that error was not

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as granting him the "authority to accept an institution's

corrective measures in the administration of Title IV funds when

in my judgment such measures 'eliminate the basis for the

liability' sought by [the DOE] . . . ." Id. Specifically, the

Secretary noted that Gibson exceeded the 90 percent threshold by

only a "conspicuously small amount of money;" there was no evidence

that Gibson had engaged in fraud or a pattern of similar

violations; Gibson had no other regulatory infractions; and

Gibson's attempted corrective measure (the $3,850 donation) would

have brought the school in compliance had the donation been an

acceptable source of revenue. Id. at *2-3.

Here, International urged the Secretary to take the same

course as in Gibson, that is, to forgive the school's $1.3 million

liability. But the Secretary rejected that argument, finding that

International's case was too distinguishable from Gibson's, such

that "[t]he scope of the equitable remedy authorized in [Gibson]

part of a pattern of error, and there is no
evidence of fraud or misconduct related to the
error, the Secretary permits the institution
to correct or cure the error.

(2) If the institution is charged with a
liability as a result of an error described in
paragraph (d)(1) of this section, the
institution cures or corrects that error with
regard to that liability if the cure or
correction eliminates the basis for the
liability.

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does not encompass the facts of" International's case.

Specifically, the Secretary found that International's case was

distinguishable from Gibson's because (1) International exceeded

the 90 percent threshold by more than double the amount Gibson

had, such that International's deficit was not "conspicuously

small" like Gibson's was; (2) the DOE had already questioned

International's ability to serve as a responsible fiduciary to the

Title IV funds, illustrated by the fact that International had

already been placed on Heightened Cash Monitoring; and (3) unlike

Gibson, International did not establish that it had anticipated

the 90/10 shortfall and then "corrected or cured the error that

resulted in liability," in the same year that the violation

occurred, and "in a manner that eliminates the basis of liability."

International argues that the Secretary's decision was

erroneous in two respects. First, International claims that a

statutory provision, 20 U.S.C. § 1099c-1(b)(3), on its face

required the Secretary to allow the school to "cure its error

absent a pattern of error and absent fraud or misconduct related

to the error." And second, International argues that it did cure

its 90/10 error by infusing cash into the school with the $1.5

million loan from the owner, similar to the tack Gibson took, such

that its 90/10 violation also should have been forgiven.

First, we easily dispose of the claim that 20 U.S.C. §

1099c-1 required the Secretary to allow International to cure its

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default. To be sure, § 1099c-1(b)(3) provided that "the Secretary

shall . . . permit the institution to correct or cure an

administrative, accounting, or recordkeeping error if the error is

not part of a pattern of error and there is no evidence of fraud

or misconduct related to the error." (Emphasis added). The

implementing regulation provided, however, that "[i]f an

institution's violation that resulted in the final audit

determination . . . results from an administrative, accounting, or

recordkeeping error, and that error was not part of a pattern of

error, and there is no evidence of fraud or misconduct related to

the error, the Secretary permits the institution to correct or

cure the error." 34 C.F.R. § 668.113(d)(1) (1999) (emphasis

added).19 But International argues only that the "Secretary had a

statutory duty to permit International to cure its error absent a

pattern of error and absent fraud or misconduct related to the

error." While International does not clearly argue such, we

interpret this claim as one that the statute's use of mandatory

language -- "shall" -- required the Secretary to let the school

correct or cure its mistake, while the implementing regulation's

use of discretionary language -- "permits" -- did not, thus

19 Given the language in both the statute and the implementing
regulation referencing administrative accounting or bookkeeping
errors, we do not even see how these provisions would ever apply
to a substantive 90/10 violation. We will assume without deciding,
however, that the statute could apply to an actual 90/10 violation
because the DOE does not make this argument.

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rendering the regulation's interpretation of the statute

erroneous. However, International provides no developed argument

as to why the statute and regulation are inconsistent just because

their language is not identical, such that the Secretary per se

erred by relying on the regulation. See Gutierrez de Martinez v.

Lamagno, 515 U.S. 417, 432 n.9 (1995) ("Though 'shall' generally

means 'must,' legal writers sometimes use, or misuse, 'shall' to

mean 'should,' 'will,' or even 'may.'"). This argument is

therefore waived for lack of development. See Zannino, 895 F.2d

at 17.

Next, International argues that even if the decision to

permit the school to cure its 90/10 problem was solely the

Secretary's discretionary call, he arbitrarily and capriciously

applied 34 C.F.R. § 668.113(d) in a manner inconsistent with the

standard set forth in his decision in Gibson. International claims

that the distinctions the Secretary drew between Gibson and

International were "strained" and "minor" because (1) like Gibson,

International did not have any prior regulatory violations when

the 90/10 assessment was imposed; (2) the amount by which both

schools exceeded the 90 percent threshold was "de minimis"; and

(3) International took the same corrective action Gibson took by

making a donation to the school.

While not explicitly so, International's claim is framed

as one that the Secretary arbitrarily departed from prior precedent

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(i.e., the Gibson decision) in refusing to grant relief from

International's 90/10 violation.20 And "[d]eparture from agency

precedents embodied in prior adjudicative decisions can constitute

an abuse of discretion if the reasons for the failure to follow

precedent are not explained." River St. Donuts, LLC, 558 F.3d at

117.

But International's claim stands on shaky footing.

While an agency must "explain[] why change is reasonable" when it

departs from prior agency precedent, Shaw's Supermarkets, Inc. v.

NLRB, 884 F.2d 34, 41 (1st Cir. 1989), International has not

argued, let alone established, that the holding set forth in Gibson

reflected any "prior norm," "usual rule[] of decision," or

"consistent precedent" of the DOE, see id. at 36-37 (internal

quotation marks omitted), such that the Secretary was bound by the

Gibson decision in first place. See also River St. Donuts, 558

F.3d at 116 (noting the agency was departing from a "policy").

And we see Gibson, at best, as simply a case-specific application

of 34 C.F.R. § 668.113(d) (and likely an incorrect one at that,

from what we can tell). Indeed, the Secretary specifically said

in Gibson:

I do not hold as a general matter that

20
The magistrate judge also interpreted the nature of
International's claim this way, and neither party took issue with
this characterization in the briefing.

- 31 -
 violations of the 90/10 rule are to be
considered administrative errors or that such
violations are always subject to the
extraordinary remedial exceptions of section
668.113(d). Rather, this decision stands for
the limited proposition that under
circumstances that I deem applicable, I may
exercise my authority to accept a corrective
action of an isolated regulatory violation .
. . .

Gibson at *2 n.6. Thus, we do not see (and International has not

shown) how Gibson reflected agency precedent, such that the

Secretary was even required to explain his reasons for departing

from that case in deciding this one.

Even if we assume, however, that the Secretary owed

International an explanation, International's claim would still

fail because the Secretary more than adequately explained why

International's case was distinguishable from Gibson's.21 As we

have said before, "[t]he agency's actions are presumed to be

valid," P.R. Tel. Co. v. Telecomm. Regulatory Bd. of P.R., 665

F.3d 309, 319 (1st Cir. 2011), and so the Secretary's decision to

depart from prior precedent need only be "supported by a rational

basis," River St. Donuts, LLC, 558 F.3d at 117. Also, as the

Secretary noted, the DOE already had concerns about whether

21 As we noted above, the law would require the Secretary to
"focus[] upon the issue and explain[] why change is reasonable,"
Shaw's Supermarkets, Inc. v. NLRB, 884 F.2d 34, 41 (1st Cir. 1989),
but International doesn't argue that the Secretary did not focus
on the issue.

- 32 -
International could operate as a responsible fiduciary

(illustrated by the fact that the DOE had placed the school on

Heightened Cash Monitoring), which was a concern that did not exist

in the Gibson case.22 Further, International did not, as Gibson

did, "adopt [] corrective measures that would eliminate the basis

for liability." While International compares the $1.5 million

loan the school's owner made in 2006 to the $3,850 donation

Gibson's owner made, as the Secretary notes, the Gibson donation

was made during the infracting year, and specifically with the

purpose of remedying the 90/10 violation. The loan made to

International, however, was not intended to cure the school's 90/10

violation -- it was made (well after the infracting fiscal year

was over) to keep the school afloat as it paid out student funds

from its own pocket while the school was on Heightened Cash

Monitoring. Thus, the Secretary concluded, the International loan

could not have corrected International's basis for liability.

Based on these facts alone, the Secretary adequately explained why

departure from the relief provided in Gibson was reasonable.

22 International argues that it was on Heightened Cash
Monitoring only due to their 90/10 violation, and thus, being on
Heightened Cash Monitoring is neither a regulatory violation in
and of itself, nor indicative of other problems. We note, however,
that the DOE has discretion regarding when to place institutions
on Heightened Cash Monitoring, 34 C.F.R. § 668.162(a)(1), and the
school does not dispute that the reason International was placed
on Heightened Cash Monitoring was because the DOE had concerns
about its fiduciary capacity.

- 33 -
 All in all, we conclude that the magistrate judge's

summary judgment affirmance of the FAD was proper.

C. Discovery

Finally, International argues that the magistrate judge

should have permitted limited discovery to supplement the

administrative record, namely, for the DOE to turn over all the

documents it considered in reaching its decision against

International. Specifically, International claims that the agency

did not provide any of its "internal guidance, policies,

procedures, or memoranda."

This argument has no merit. When reviewing agency

decisions, we do not allow supplementation of the administrative

record without specific evidence (i.e., a "strong showing") of the

agency's "bad faith or improper behavior." Town of Norfolk v.

U.S. Army Corps of Eng'rs, 968 F.2d 1438, 1458-59 (1st Cir. 1992)

("Courts require a strong showing of bad faith or improper behavior

before ordering the supplementation of the administrative

record."); United States v. JG-24, Inc., 478 F.3d 28, 34 (1st Cir.

2007) ("Normally, we do not allow supplementation of the

administrative record unless the proponent points to specific

evidence that the agency acted in bad faith."). Here,

International has not even suggested that the agency acted in bad

faith, let alone provided evidence of it. Therefore, the

magistrate judge did not err in denying the request for discovery.

- 34 -
 CONCLUSION

For these reasons, we affirm both the grant of the DOE's

motion for summary judgment and the denial of International's

motion for summary judgment. We likewise affirm the denial of the

motion to compel.

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