09-4325-cv
American Association of Physician Specialists, Inc. v. New York State Department of Health

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER
FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE
P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1. W HEN CITING A SUMMARY ORDER IN A
DOCUM ENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 1st day
of October, two thousand ten.

Present:
         GUIDO CALABRESI
         ROBERT A. KATZMANN,
         DENNY CHIN,
               Circuit Judges.
________________________________________________

AMERICAN ASSOCIATION OF PHYSICIAN SPECIALISTS, INC.,

           Plaintiff-Appellant,

                  v.                                            No. 09-4325-cv

NEW YORK STATE DEPARTMENT OF HEALTH, NEW YORK STATE EDUCATION
DEPARTMENT, BRIAN J. WING, Interim Executive Deputy Commissioner, ROBERT W.
BARNETT, Director, Office of Health Care Quality and Safety, RICHARD P. MILLS,
Commissioner,

         Defendants-Appellees.
________________________________________________

 For Plaintiff-Appellant:                 MICHAEL H. SUSSMAN , Sussman & Watkins,
                                          Goshen, NY
 For Defendants-Appellees:                  STEVEN C. WU , Assistant Solicitor General (Barbara
                                            D. Underwood, Solicitor General, Benjamin N.
                                            Gutman, Deputy Solicitor General, of counsel), for
                                            Andrew M. Cuomo, Attorney General of the State of
                                            New York, New York, NY


      Appeal from the United States District Court for the Southern District of New York
(Young, J.).*

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court entered September 17, 2009, is AFFIRMED.

       Plaintiff-Appellant the American Association of Physician Specialists, Inc. (“AAPS”)

appeals from a judgment of the United States District Court for the Southern District of New

York (Young, J.), entered September 17, 2009, granting defendants’ motion for summary

judgment. We assume the parties’ familiarity with the facts, procedural history, and

specification of issues on appeal.

       In Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam), the Supreme

Court recognized “class of one” equal protection claims, in which a “plaintiff alleges that she has

been intentionally treated differently from others similarly situated and that there is no rational

basis for the difference in treatment.” This Court has held that in order to succeed on such a

claim, a plaintiff must establish, inter alia, that “no rational person could regard the

circumstances of the plaintiff to differ from those of a comparator to a degree that would justify

the differential treatment on the basis of a legitimate government policy.” Clubside, Inc. v.

Valentin, 468 F.3d 144, 159 (2d Cir. 2006) (quoting Neilson v. D’Angelis, 409 F.3d 100, 105 (2d



       *
       The Honorable William G. Young, United States District Judge for the District of
Massachusetts, sitting by designation.

                                                  2
Cir. 2005)) (internal quotation marks omitted). AAPS fails to meet that standard here. The

record establishes that AAPS does not require completion of a residency program in the three

specialties that comprise the vast majority of its certifications, while the organizations that the

New York State Department of Health does recognize as providing valid board certification do

impose such a requirement on all physicians now seeking certification. This difference belies

AAPS’s claim that it is similarly situated to these other organizations, and it further “justif[ies]

the differential treatment on the basis of [the] legitimate government policy,” id. (citation and

internal quotation marks omitted), of ensuring that physicians practicing in a given field in New

York State have demonstrated their competency in an acceptable fashion.

       We have considered AAPS’s other arguments and find them to be without merit. For the

foregoing reasons, we AFFIRM the judgment of the district court.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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