John Doe v. National Board of Medical Examiners, (d.c. Civ. No. 99-Cv-04532)

Citations: 199 F.3d 146; 10 Am. Disabilities Cas. (BNA) 1; 1999 U.S. App. LEXIS 32117; 1999 WL 1125391Docket: 99-1877

Court: Court of Appeals for the Third Circuit; December 8, 1999; Federal Appellate Court

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John Doe, a medical student with multiple sclerosis, challenged the National Board of Medical Examiners (NBME) for flagging his scores on the United States Medical Licensing Examination (USMLE) due to accommodations he received under the Americans with Disabilities Act (ADA). The NBME provided accommodations, including extra time, as required by Title III of the ADA. However, it annotates scores of examinees who receive such accommodations to maintain transparency about factors affecting score comparability. Doe, applying for residency in physical medicine and rehabilitation, sought a preliminary injunction to prevent this annotation, arguing it violates the ADA.

The District Court granted his motion, finding Doe had standing, a likelihood of success on his claim under section 302 of the ADA, and would suffer irreparable harm without the injunction. The appeal raised four key questions: Doe's standing, which section of the ADA applies, whether score annotation violates the ADA, and whether the accommodations affected score comparability. The Court concluded that while flagging Doe's scores constitutes an injury sufficient for standing, it does not automatically violate the ADA. It determined that section 309 of Title III, which specifically addresses examinations, governs the case, rather than section 302, which pertains to general public accommodation discrimination.

To establish a reasonable likelihood of success on his claim under section 309, Doe was required to demonstrate that his test scores, which included accommodations, were comparable to non-accommodated scores in predicting future success. He did not meet this burden, leading to the conclusion that the District Court's finding of a reasonable likelihood of success on Doe's claims under Title III of the ADA was not supported by the evidence. Consequently, the appellate court determined that the District Court abused its discretion and vacated the order for a preliminary injunction.

The USMLE, offered by the NBME and the Federation of State Medical Boards, is a three-part standardized test required for medical licensure in the U.S. Initially a written exam, it transitioned to a computerized format in May 1999. USMLE scores also play a significant role in residency and fellowship program admissions.

Examinees with disabilities can request testing accommodations, which must be supported by evidence of their disability and the appropriateness of the requested accommodation. Common accommodations include extra time, which is flagged on score transcripts to indicate potential validity issues. The NBME's psychometricians have indicated that scores from extra time accommodations may not be directly comparable to standard conditions due to potential over- or under-compensation for disabilities.

Doe, a fourth-year medical student diagnosed with multiple sclerosis in 1987, experiences various symptoms that affect physical capabilities but not cognitive abilities. Both parties agree that Doe qualifies as disabled under the ADA.

Doe applied to the NBME for testing accommodations for the USMLE Step 1 due to a physical disability, completing a questionnaire that indicated his condition. After negotiations where Doe rejected lesser accommodations, the NBME granted him time and a half and special seating near a restroom, as his condition necessitated frequent breaks. Doe acknowledged he could continue responding to exam questions during these breaks. His Step 1 score report noted that he received accommodations. Following the receipt of his scores, Doe requested the removal of this annotation, but the NBME denied his request.

For Step 2, Doe again sought accommodations, specifically time and a half, but the NBME provided double time as the computerized format allowed only that option. The NBME is expected to report his scores in December. Doe has submitted flagged Step 1 scores to some residency programs, which indicates to reviewers that he received accommodations due to a disability. The NBME will confirm to inquiring programs that Doe received extra time but will not disclose the specific nature of his disability, multiple sclerosis.

The District Court concluded that the NBME had not demonstrated a necessity to flag scores for psychometric validity. However, it did not determine whether a candidate's score with extra time could be directly compared to a standard score from a candidate without accommodations.

Tests can be classified as "power" or "speeded," with power tests assessing knowledge without time constraints and speeded tests measuring completion time for tasks. The USMLE exams are primarily power tests but include a speeded component. Approximately 25% of examinees reported needing more time. Expert testimonies conflicted regarding the comparability of scores with and without time accommodations. The NBME's experts indicated a lack of evidence for comparability, while Doe's expert suggested that extra time produces comparable results, although he conceded it was difficult to assess any advantage Doe might have received. The District Court chose not to determine comparability based on this evidence.

Doe expressed concerns about discrimination from residency and internship programs if he submitted flagged scores. However, he admitted he was unaware of any specific concerns from these programs regarding admitting individuals with disabilities and had not been informed of any potential denial of admission due to the flag or his disability. Doe's counsel cited three reasons to support the claim of discrimination, including Doe's past medical school admissions experience in 1988, where he was accepted to one of two medical schools without flagged scores. However, Doe did not provide evidence comparing the selectivity of the medical schools from his two application periods, nor did he present evidence regarding his academic performance or the competitiveness of his applications that would substantiate his claim of discrimination due to flagged scores. He also failed to demonstrate that residency and internship programs would respond similarly to his applications as the medical schools had.

Doe’s counsel referenced Dr. Geisinger’s testimony, asserting that some programs may discriminate against Doe due to his disability, particularly citing concerns about accommodation costs for disabled residents. However, when questioned about empirical support for his claim, Dr. Geisinger admitted there was none. The Willingham study, which Dr. Geisinger mentioned, is ambiguous; it indicates that while the selection process for disabled applicants was generally comparable to that of non-disabled applicants, there were lower admissions for some visually impaired and physically handicapped students at smaller institutions.

The National Board of Medical Examiners (NBME) contested Doe's request for a preliminary injunction, arguing that Doe lacked standing and did not fulfill the criteria for such an injunction. They also claimed a communicatory privilege regarding their good faith communications about USMLE scores. The District Court ruled that Doe had standing to sue the NBME, demonstrated a likely violation of his ADA rights, and would suffer irreparable harm without an injunction, thus granting Doe's motion to prevent the NBME from annotating or flagging his USMLE scores. The NBME is appealing this preliminary injunction.

Regarding standing, the essential criteria include actual injury, causation, and the ability to obtain redress. The court noted that mere allegations are insufficient for establishing standing at this stage. Doe failed to provide evidence of a concrete possibility of discrimination from residency programs based on flagged scores, which undermined his standing claim. The District Court's reasoning, equating a statutory violation with injury, was criticized as it overlooked the necessity of demonstrating actual harm. While Congress can create laws to enhance standing, it cannot simply grant standing through legislation without evidence of an actual injury.

Doe has established injury in fact, providing a basis for standing by showing that flagging his test scores as identifying him as disabled harms him. His concern about how others might perceive him due to this identification leads him to actively seek to avoid such labeling. The court finds this injury, stemming from being labeled against his will, constitutes a concrete harm related to the NBME's policy. Unlike previous cases where injuries were generalized or speculative, Doe's injury is personal and immediate, as some of his scores have already been flagged, with others likely to follow without an injunction. Consequently, Doe meets the constitutional standing requirement as his injury is traceable to the NBME and would be remedied by the relief sought.

The discussion on preliminary injunctions outlines that the court reviews these orders for abuse of discretion, examining legal questions de novo. Four factors determine whether to grant a preliminary injunction: the likelihood of success on the merits, the risk of irreparable harm from denial, potential harm to the nonmoving party, and the public interest. Although Doe must show a reasonable probability of success regarding his ADA claim to uphold the injunction, the court concludes he has not demonstrated such likelihood, leading to the vacating of the preliminary injunction without addressing the issue of irreparable harm.

The District Court's analysis under section 302 of the ADA, which prohibits discrimination in public accommodations, was inadequate as it did not consider section 309, a more specific statute addressing discrimination by examination providers. Statutory construction principles dictate that specific provisions take precedence over general ones. This principle emphasizes that a general statute should not apply to matters specifically addressed elsewhere in the same law, particularly when the provisions are closely related. The case of HCSC-Laundry illustrates this, where a cooperative laundry was denied not-for-profit status under a general tax provision because a specific provision pertaining to hospitals was applicable. Similarly, sections 302 and 309 are both part of Title III of the ADA, indicating that section 309 provides a specific definition of requirements concerning examinations. Section 309 mandates that examinations be accessible to individuals with disabilities, and while it does not prohibit flagging scores of examinees with accommodations, it requires the National Board of Medical Examiners (NBME) to accommodate disabilities, although NBME asserts it is not obligated to keep accommodation details confidential from programs using USMLE scores for candidate evaluation.

The Department of Justice regulations regarding section 309 clarify that examinations for individuals with disabilities should accurately reflect their aptitude or achievement, not their impaired skills, but do not explicitly prohibit flagging accommodations. Doe contends that the annotation on his scores undermines their validity and denies him an accessible examination experience. However, the interpretation of "accessible" does not imply that scores must be comparable to those of standard test-takers. Accessibility requires adjustments to the testing process for disabled individuals, rather than guaranteeing equivalent results.

The NBME did not deny Doe a score, nor does the annotation invalidate his scores. Doe failed to demonstrate that his scores are comparable to those without accommodations or that the annotation would adversely affect their acceptance by residency programs. Evidence suggests that psychometric comparisons between accommodated and non-accommodated scores are indeterminate. The lack of a statutory ban on score annotations means that the NBME's actions do not constitute a denial of access. To prove his claim, Doe would need to establish either the comparability of his scores or evidence that they would be disregarded by reporting programs, which he has not done. Therefore, he does not currently show a reasonable likelihood of success in his claim, though further evidence may be presented at a later hearing.

Section 302 of the ADA prohibits discrimination based on disability in public accommodations, but the court found no evidence that Doe would likely succeed under this section. The court emphasized that public accommodation refers to the services provided by the establishment itself, not by the lessor. It noted that while the service of reporting a score is linked to the examination, Doe failed to demonstrate that this service was provided in a discriminatory or unequal manner compared to other examinees. The District Court previously held that flagging Doe's score constituted discrimination, but this was rejected because Doe did not show that his flagged score was substantively unequal to that of other candidates. Additionally, Doe's claim that identifying him as disabled could lead to discrimination by third parties faced challenges, including the lack of confidentiality requirements under Title III, contrasting with Title I of the ADA. Ultimately, the court vacated the District Court's preliminary injunction and stated that each party would bear its own costs. The court also reaffirmed that the general requirements of section 302 did not alter its conclusion regarding Doe’s likelihood of success.

The NBME presented evidence indicating that Doe's neurological disorder could be detected through observation during interviews for residency and internship programs. Doe challenged this evidence, asserting he successfully concealed his disability in medical school. The court found the NBME's evidence insufficient to show that Doe's injury wouldn’t be addressed by his requested relief, emphasizing that any identification of his disability would only occur post-interview, unlike an annotation on his test score that could preemptively label him as disabled.

The NBME sought to establish a common law privilege to protect truthful communications made to licensing authorities and residency programs, arguing such a privilege is necessary to ensure qualified physicians. They referenced Rothman v. Emory University, which suggested a strong public interest in protecting communications about applicants' qualifications. However, since Doe failed to prove a reasonable likelihood of success on the merits of his claims, the court did not consider the NBME's privilege argument.

Doe also claimed retaliation under Title V of the Americans with Disabilities Act (ADA). The court found no evidence supporting retaliation or coercion, leading to the conclusion that Doe did not demonstrate a reasonable likelihood of success on this claim.

The court discussed the interpretation of statutes under the "specific governs the general" canon of construction, distinguishing between simultaneous provisions and arguments for implied repeal, noting that the canon applies more forcefully in cases of direct conflict. While the NBME did not dispute the examination's status as a public accommodation, it contended there was no direct link between the exam and the score report. Doe argued that the score is intrinsically tied to the exam, which the court acknowledged as a strong argument, though it concluded that resolving this issue would not change the outcome.

Lastly, while Section 302 prohibits discrimination and outlines specific prohibitions, the court found these subsections largely irrelevant to Doe's situation, reaffirming that he had not shown a likelihood of prevailing on a claim under Section 302.