Hessein v. American Board of Anesthesiology Inc., 100715 FED3, 15-2249

Docket Nº:15-2249
Opinion Judge:PER CURIAM
Party Name:AMGAD A. HESSEIN. M.D., Appellant v. THE AMERICAN BOARD OF ANESTHESIOLOGY INC; DOUGLAS B. COURSIN, M.D., Board of Directors, in their official capacity; CYNTHIA A. LIEN, M.D., Board of Directors, in their official capacity; J. JEFFREY ANDREWS, M.D., Board of Directors, in their official capacity; DAVID L. BROWN, M.D., Board of Directors, in their o
Judge Panel:Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges
Case Date:October 07, 2015
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

AMGAD A. HESSEIN. M.D., Appellant

v.

THE AMERICAN BOARD OF ANESTHESIOLOGY INC; DOUGLAS B. COURSIN, M.D., Board of Directors, in their official capacity; CYNTHIA A. LIEN, M.D., Board of Directors, in their official capacity; J. JEFFREY ANDREWS, M.D., Board of Directors, in their official capacity; DAVID L. BROWN, M.D., Board of Directors, in their official capacity; DANIEL J. COLE, M.D., Board of Directors, in their official capacity; DEBORAH J. CULLEY, M.D., Board of Directors in their official capacity; BRENDA G. FAHY, Board of Directors, in their official capacity; ROBERT R. GAISER, M.D., Board of Directors, in their official capacity; WILLIAM W. HESSON, M.D., Board of Directors, in their official capacity; ANDREW J. PATTERSON, M.D., Ph.D., Board of Directors, in their official capacity; JAMES P. RATHMELL, M.D., Board of Directors, in their official capacity; SANTHANAM SURESH, Board of Directors, in their official capacity; MARY E. POST, Executive Staff, in her official capacity; DAVID H. CHESTNUT, Executive Staff, in his official capacity; SHIRLINE FULLER, Executive Staff, in her official capacity; JOHN DOES PERSONS; JOHN DOES BOARD, in official capacity; JOHN DOES AGENCIES

No. 15-2249

United States Court of Appeals, Third Circuit

October 7, 2015

NOT PRECEDENTIAL

Submitted Pursuant to Third Circuit LAR 34.1(a) October 6, 2015

On Appeal from the United States District Court for the District of New Jersey (D.C. Civ. No. 3-14-cv-02039) District Judge: Honorable Peter G. Sheridan.

Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

OPINION [*]

PER CURIAM

Amgad Hessein appeals from an order of the District Court granting summary judgment to the defendants. For the reasons that follow, we will affirm.

Hessein, a physician and anesthesiologist, saw his licenses to practice medicine in New York and New Jersey temporarily suspended as a result of a pending criminal indictment in the Superior Court of Union County, New Jersey. He would eventually be charged with conspiracy, theft by deception, and 72 counts of health care insurance fraud. A trial is pending. Because Hessein's licenses were suspended, in April, 2013, the credentialing committee of the American Board of Anesthesiologists ("the Board") revoked his certifications in anesthesiology and pain management.1 Hessein commenced this civil action pro se in the United States District Court for the District of New Jersey against the Board and numerous Board members, alleging that the revocation of his specialty certificates violated his right to due process under the Fourteenth Amendment, and violated the Sherman and Clayton Acts, 15 U.S.C. § 1, et seq. He also asserted state claims for, among other things, breach of contract, tortious interference with contract, and defamation. Hessein sought reinstatement of his certificates and punitive damages.

The defendants moved to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). By order dated March 15, 2015, the District Court dismissed most of them for lack of personal jurisdiction.2 The Board, J. Jeffrey Andrews, and Robert R. Gaiser remained as defendants and the District Court converted their motion to one for summary judgment, Fed.R.Civ.P. 56(a), in which they would contend that the revocation of Hussein's certifications was proper given the state of his medical licenses. Hessein was given an opportunity to show that a genuine issue of fact warranted a trial on his claims. In opposing summary judgment, Hessein contended that his specialty certificates were revoked without notice or a hearing and without authority, and that he was in any event exempt from the requirement that he maintain a license with no restrictions because he obtained his certificates before the Board instituted the challenged policy.

On May 15, 2015, the District Court heard oral argument on the motion for summary judgment and determined that the Board properly revoked Hessein's certifications, substantively and procedurally, because he had failed to maintain an active, unrestricted medical license. An order awarding summary judgment to the remaining defendants and against Hessein was entered on the docket on May 12, 2015. In particular, the District Court determined that Hessein was not entitled to relief under 42 U.S.C. § 1983 for a violation of due process because Andrews, Gaiser and even the Board are not state actors. The Court determined that Hessein could not prevail under the Sherman and Clayton Acts because the revocation of his certifications was not an illegal or anti-competitive tactic. In addition, the Court determined that Andrews and Gaiser were not in the same geographical location as Hessein and were not in direct competition with him. Hessein's state law claims did not present a triable issue either because, in essence, his medical licenses were, in fact, temporarily suspended due to an indictment for health care fraud and his exemption argument was meritless; he thus could not show that there...

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