                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-11-2006

Doe v. Natl Bd Med Examiner
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2254




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                                                               NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ____________

                                     No. 05-2254
                                    ____________


                                     JOHN DOE,

                                                   Appellant

                                             v.

                NATIONAL BOARD OF MEDICAL EXAMINERS

                                  _______________

                  On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                (D.C. No. 99-cv-04532)
              District Judge: Chief Magistrate Judge M. Faith Angell
                                  _______________

                               Argued January 17, 2006


            Before: FUENTES, BECKER,* and ROTH,** Circuit Judges.

                             (Filed : December 11, 2006)




       *This case was argued before the panel of Judges Fuentes, Becker and Roth. Judge
Becker died on May 19, 2006, before the filing of the opinion. The decision is filed by a
quorum of the panel. 28 U.S.C. § 46(d).

       **Judge Roth assumed senior status on May 31, 2006.
Gregory S. Seador, Esquire (Argued)
Latham & Watkins
555 11th Street, NW
Suite 1000
Washington, DC 20004

Rachel L. Strong, Esquire
Howrey LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20004

Robert M. Bruskin
Washington Lawyers’ Committee For
Civil Rights and Urban Affairs
11 DuPont Circle, N. W.
Suite 400
Washington, DC 20036

             Counsels for Appellant

Gabriel L. Bevilacqua, Esquire (Argued)
Joseph C. Monahan, Esquire
Saul Ewing
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102

             Counsels for Appellee

                             _____________________

                                   OPINION
                             _____________________


ROTH, Circuit Judge

        John Doe, a doctor diagnosed with multiple sclerosis, filed suit against the

National Board of Medical Examiners (NBME), seeking injunctive relief. In his action

under the Americans with Disabilities Act (ADA), Doe argues that an annotation on his

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Medical Licensing Examination scores, which effectively reveals that he is disabled,

should be removed. The District Court entered summary judgment in favor of the

NBME, holding that Doe was not entitled to injunctive relief because he could not

show a likelihood of future injury. Doe appeals the District Court’s judgment. We will

affirm.

I. Facts and Procedural History

          The facts and complicated procedural history of this case are well-known to the

parties for whom we principally write. Hence we set forth only basic background facts

and limit our discussion largely to our ratio decidendi.

          John Doe is a doctor who was diagnosed with multiple sclerosis while in

college. His condition causes physical problems and discomfort, including muscular

spasticity, fine motor problems, and urgency of the bowel and bladder. However, his

cognitive abilities are not affected.        The NBME provided Doe with testing

accommodations during at least two parts of the United States Medical Licensing

Examination (USMLE). The USMLE is a standardized multiple-choice test designed

to assess one’s understanding of medical concepts. In order to receive a license to

practice medicine in the United States, an applicant must receive a passing score on

each of three parts of the USMLE.

          When those with disabilities take the USMLE, they may request certain

accommodations. Doe requested, and was given, extra time to complete the exam and

a seat located near a bathroom. Whenever an examinee like Doe is granted extra time,

                                             3
the NBME annotates or “flags” the examinee’s transcript of scores.1 Specifically, the

statement “Testing Accommodations” is printed on the front of the transcript of scores.

On the back is printed: “Following review and approval of a request from the

examinee, testing accommodations were provided in the administration of the

examination.” Because accommodations are given only to those who are disabled, any

annotation essentially indicates that the person receiving accommodations is disabled.

       Doe claims, for the second time before this Court, that the practice of flagging

his score report violates the ADA. Doe initially filed a complaint in the District Court

for the Eastern District of Pennsylvania on September 10, 1999. At that time, Doe was

in the process of applying for a residency and he sought to prevent the NBME from

annotating his USMLE scores. By consent of the parties, the District Court assigned

the case to a Magistrate Judge. The court granted Doe’s motion for a preliminary

injunction. See Doe I, 1999 U.S. Dist. LEXIS 16836, at *47. The NBME appealed.

On expedited appeal, we found that Doe had standing to bring his claim, but we

vacated the preliminary injunction because Doe did not demonstrate a likelihood of

success on the merits. See Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 149 (3d

1
  The NBME has claimed that this practice of “flagging” is important because it
“cannot certify the meaning of scores [gained with time-related accommodations] as
comparable to scores obtained under standard administration conditions.” Doe v.
Nat’l Bd. of Med. Exam’rs, No. 99-4532, 1999 U.S. Dist. LEXIS 16836, at *27
(E.D. Pa. Nov. 1, 1999) (Doe I). In other words, the NBME has determined that a
grant of additional time might affect the “validity” of a score. Doe argues that his
scores are indeed comparable to the scores of those candidates who have taken the
USMLE under standard time conditions. We need not – and do not – rule on this
issue of comparability.
                                           4
Cir. 1999) (Doe II). After the injunction was vacated, the District Court granted the

NBME’s subsequent motion for summary judgment. That ruling is now before us. We

have jurisdiction to review it pursuant to 28 U.S.C. § 1291.

       On appeal, Doe emphasizes that the annotation on his transcript of scores

violates the ADA because it discloses against his will the fact that he is disabled. Doe

is no longer applying for a residency programs as he was when he first filed suit against

the NBME. Instead, Doe now asserts that he plans to move to California and to apply

for a license to practice medicine there. Doe would therefore be required to submit his

flagged USMLE scores to the Medical Board of California. Doe also states that

“should [he] choose to pursue a fellowship” or “relocate” to another state, he will be

required to again submit his USMLE scores to the proper fellowship program or state

licensing body. He seeks to enjoin the NBME from annotating any of his score reports

to reflect the accommodations received.

II. Standing

       Three requirements must be met to establish constitutional standing. See Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). First, the plaintiff must

demonstrate an “injury-in-fact.” See Danvers Motor Co. v. Ford Motor Co., 432 F.3d

286, 290-291 (3d Cir. 2005) (citing Lujan, 504 U.S. at 560-61). The injury must be

concrete and particularized and actual or imminent, as opposed to conjectural or

hypothetical. Id. Second, the plaintiff must demonstrate “a causal connection between

the injury and the conduct complained of.” Id. Last, the plaintiff must show that it is


                                           5
likely, not merely speculative, that his or her injury will be redressed by a favorable

decision. Id.; see also Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 399 F.3d 248,

254-55 (3d Cir. 2005); Lloyd v. Hovensa, LLC, 369 F.3d 263, 272 (3d Cir. 2004).

       In addition to meeting these three basic requirements for standing, Doe must

also “meet[] the preconditions for asserting an injunctive claim in a federal forum.”

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). To establish standing in an

action for injunctive relief, a plaintiff must show that he or she is likely to suffer future

injury from the defendant’s illegal conduct. See Roe v. Operation Rescue, 919 F.2d

857, 864 (3d Cir. 1990). Past illegal conduct is insufficient to warrant injunctive relief

unless it is accompanied by “continuing, present adverse effects.” Lyons, 461 U.S. at

102 (citing O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974)).

       Because Doe cannot show a likelihood of a future injury, we hold that he lacks

standing to seek injunctive relief. Doe objects to the annotation on his score report

because it discloses the fact that he is disabled. It is true that we have stated previously

that being identified as a disabled person against one’s will may provide a basis for

standing. See Doe II, 199 F.3d at 153. However, we also suggested in Doe II that

standing will not exist, despite an involuntary disclosure, where a fear of subsequent

discrimination is unfounded or is not “based in reality.” Id. In such a situation, an

injury would likely be only theoretical. Id.

       Here, Doe has failed to demonstrate a realistic fear that the Medical Board of

California – or any other state licensing board – will discriminate against him in the


                                             6
future as a result of the disclosure of his disability. This is largely because of the

context in which USMLE scores are viewed during the licensing process. According

to California law, physicians submitting their USMLE scores to the Medical Board

need only obtain passing scores. See Medical Board of California, Examination

Scores, at http://www.medbd.ca.gov/Applicant_Exam_Score.htm. This is true in other

states as well. See, e.g., Ronald L. Scott, Cybermedicine and Virtual Pharmacies, 103

W. Va L. Rev. 407, 463 (2001) (“Every state requires that a physician pass the United

States Medical Licensing Examination . . . in order to practice medicine.”) (emphasis

added). Accordingly, Doe’s USMLE score report and any annotation would be viewed

on a pass-fail basis only. The Board simply has no discretion to treat annotated scores

as different from, or inferior to, non-annotated scores.       Therefore, any fear of

discrimination related to disclosure would be unfounded.

       While Doe claims that the flag placed on his score report “carries and harbors

society’s prejudices against people with disabilities,” that cannot be the case where the

score report is viewed only to determine whether an applicant has passed the USMLE.

It is true that in the context of residency programs, USMLE scores may be used to

actually evaluate candidates’ relative performance. See Doe II, 199 F.3d at 148. In

contrast, in the context of state licensing, the scores are assessed on a pass-fail basis

only to determine whether a candidate has met the necessary licensing requirements.

Since Doe has received a passing score on the USMLE examinations, it seems

inconceivable that he would be denied a license to practice medicine as a result of the


                                           7
annotation on his scores. Equitable relief is therefore not warranted because any fear

of future harm is not “based in reality.”

       In addition to emphasizing his alleged plans to move to California, Doe states

that “should [he] choose to pursue a fellowship, he will be required to submit his

USMLE scores to the fellowship program.” He also states that “should [he] ever seek

to relocate and practice medicine in any other [state] he will be required to obtain a

license in that state and submit his USMLE scores to the state’s licensing authority.”

       We conclude that Doe lacks standing to seek relief on these bases as well. Doe

is unable to show, for purposes of constitutional standing, the required injury-in-fact

relating to the possibility that he might pursue a fellowship or relocate to a state other

than California. Doe has asserted the mere possibility that he might at some point

submit his USMLE scores to a fellowship program or another state licensing body. As

the Supreme Court has cautioned: “‘[S]ome day’ intentions – without any description

of concrete plans, or indeed even any specification of when the some day will be – do

not support a finding of the ‘actual or imminent’ injury that our cases require.” Lujan,

504 U.S. at 564; see id. at 564 n.2 (“[W]e have insisted that the injury proceed with a

high degree of immediacy, so as to reduce the possibility of deciding a case in which

no injury would have occurred at all.”).

III. Conclusion

       Because Doe lacks standing to bring this action for injunctive relief, the District

Court did not err in granting judgment for the NBME. The judgment of the District


                                            8
Court will be affirmed.




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