Doe v. Nat'l Bd. of Medical Examiners, 99-

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Citation199 F.3d 146
Docket NumberNo. 99-1877,No. 99-,99-,99-1877
Decision Date23 November 1999

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199 F.3d 146 (3rd Cir. 1999)
No. 99-1877
Argued: November 23, 1999
Filed December 09, 1999

On Appeal From the United States District Court For the Eastern District of Pennsylvania Magistrate Judge: Honorable M. Faith Angell

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Counsel for Appellant: Gabriel L.I. Bevilacqua, Esquire (argued) J. Clayton Undercofler, Esquire James F. Kilcur, Esquire Lisa Galante Blackburn, Esquire Jeffrey M. VIOLA, Esquire Saul, Ewing, Remick & Saul, Llp Centre Square West 1500 Market Street, 38th Floor Philadelphia, PA 19102

Counsel for Appellee: Robert M. Bruskin, Esquire (argued) Rachel L. Strong, Esquire Howrey & Simon 1299 Pennsylvania Avenue, N.W. Washington, DC 20004, Stephen F. Gold, Esquire 125 South 9th Street, Suite 700 Philadelphia, PA 19107-5120, E. Elaine Gardner, Esquire Lois G. Williams, Esquire Washington Lawyers' Committee for Civil Rights and Urban Affairs 11 Dupont Circle, N.W., Suite 400 Washington, DC 20036

Before: Becker, Chief Judge, Scirica, and Alito, Circuit Judges.


Becker, Chief Judge.

John Doe is a medical student who has multiple sclerosis. The National Board of Medical Examiners (NBME) provided testing accommodations to Doe when he took Step 1 and Step 2 of the United States Medical Licensing Examination (USMLE), as it concedes it is required to do under Title III of the Americans with Disabilities Act ("ADA"), Pub.L. 101-336, Title III, 42 U.S.C. § 12181 et seq. The accommodations provided included extra time to complete each examination. The NBME annotates the scores of examinees who receive testing accommodations if, in its judgment, the accommodations affect the comparability of the accommodated score to non-accommodated scores. The NBME follows this practice because it believes that it owes a duty of candor to the users of USMLE scores to disclose factors that may affect the meaning of an examinee's scores. Although the USMLE was designed as a licensing examination, at the request of examinees, the NBME will send Step 1 and Step 2 scores to hospitals sponsoring residency and internship programs for use in evaluating candidates for admission to their programs. Examinees typically make such requests. Doe claims that, as applied to him, the NBME's practice of flagging accommodated scores violates Title III of the ADA.

Doe is currently in the process of applying for residencies and internships in physical medicine and rehabilitation. He brought suit in the District Court for the Eastern District of Pennsylvania seeking to enjoin the NBME from annotating his scores to reflect that he received testing accommodations. By consent of the parties, Doe's motion for a preliminary injunction prohibiting the NBME from annotating his scores was assigned to a

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Magistrate Judge (hereafter the District Court). After a three-day hearing, the District Court granted the motion, holding that Doe had standing to sue, that he had demonstrated a reasonable likelihood of success on his claim that annotating his scores violated section 302 of the ADA, and that he had demonstrated that he would be irreparably harmed absent an injunction. This expedited appeal followed (Doe must send his scores to the residency programs soon if he is to be seriously considered in the matching process that will take place in early 2000).

The critical questions on appeal are (1) whether Doe has standing to sue; (2) what section of Title III of the ADA governs Doe's claim; (3) whether the very act of annotating Doe's scores violates the ADA; and (4) whether Doe has proven that the additional time did not affect the comparability of his scores to non-accommodated scores, and thus that the flag imposes an inequality on him. We conclude that, although flagging sufficiently injures Doe to surmount the NBME's argument that Doe lacks standing to sue, flagging does not constitute an ipso facto violation of Title III of the ADA. In so doing, we conclude that section 309 of Title III, 42 U.S.C. 12189, the section specifically governing examinations, and not section 302, 42 U.S.C. 12182 the general provision on discrimination in public accommodations, controls this case.1

We also conclude that, in order to demonstrate a reasonable likelihood of success on his claim under section 309, Doe bore the burden of showing that his scores were comparable to non-accommodated scores in terms of predicting his future success, and that he failed to meet this burden. The District Court's Conclusion that Doe had demonstrated a reasonable likelihood of success on his claims under Title III of the ADA thus was unsupported by the evidence Doe presented and the factual Conclusions the Court reached. Accordingly, we hold that the District Court abused its discretion in determining that Doe had shown a reasonable likelihood of success on the merits, and we vacate the order granting the preliminary injunction.

I. Facts & Procedural History

The NBME, together with the Federation of State Medical Boards of the United States, Inc., offers the USMLE. The USMLE is a standardized multiple-choice test administered in three parts, or "Steps". The USMLE was designed as a licensing exam meant to assess an examinee's understanding of, and ability to apply, concepts and principles that are important in health and disease and constitute the basis of safe and effective patient care. In order to obtain a license to practice medicine in the United States, an examinee must obtain a passing score on all three Steps of the USMLE. Prior to May 1999, the USMLE was provided in a written format. Since May 1999, the USMLE has been given in a computerized format. After an examinee takes the USMLE, the NBME sends a score report to the examinee. Although the USMLE was designed for use as a licensing exam, it is common practice for residency and fellowship programs to use USMLE test scores in evaluating candidates for admission to their programs. At an examinee's request, the NBME will send a USMLE score transcript to third parties designated by the examinee, including residency and internship programs and state licensing authorities.

When examinees with disabilities apply to take the USMLE, they can request that the NBME provide testing accommodations. An examinee must support such a request with evidence that he is disabled and that a particular accommodation is an appropriate accommodation for his disability. Examples of accommodations that the

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NBME has provided in the past include large type, assistance filling in answer sheets, and extra time.

When an examinee is granted a testing accommodation of extra time, the NBME flags the examinee's transcript of scores with the statement "Testing Accommodations" on the front of the transcript and a comment on the back of the transcript stating: "Following review and approval of a request from the examinee, testing accommodations were provided in the administration of the examination." The NBME flags only those testing accommodations that its experts conclude may affect the validity of a score. For example, an accommodation providing a test in large print would not be flagged. The NBME flags scores obtained under extra time accommodations because its psychometricians have concluded that scores obtained with extra time accommodations may not be comparable to scores obtained under standardized conditions.2 In such circumstances, according to the NBME, the extra time may under- or overcompensate for the test-taker's disability.

John Doe currently is a fourth-year medical student at the Medical College of Virginia. He was diagnosed with multiple sclerosis in the summer of 1987, when he was in college. Doe's condition causes muscular spasticity, fine motor problems, urgency of the bowel and bladder, and occasional incontinence. Doe does not have any learning disabilities, and his multiple sclerosis does not affect his cognitive abilities. The type, frequency, and duration of symptoms that Doe experiences vary and are unpredictable. The parties agree that Doe is disabled within the meaning of the ADA.

When Doe applied to the NBME to take Step 1 of the USMLE, he completed a NBME questionnaire in order to request testing accommodations. On that questionnaire, Doe informed the NBME that he had a physical disability. After several communications between the NBME and Doe in which Doe refused lesser accommodations, the NBME provided the following accommodations for Doe's Step 1 examination: (1) time and one half to take the examination; and (2) a special seating assignment close to the restroom. Doe requested these accommodations because his condition can require him to stop and stretch his muscles frequently, taking many "micro-breaks," and to visit the restroom often. Doe concedes that it is possible for him to continue considering questions on the exam while he takes these breaks.

Doe's score report for Step 1 of the USMLE contained an annotation that Doe received testing accommodations for the examination. After he received the scores, Doe wrote to the NBME and requested that it remove the annotation from his scores. The NBME denied Doe's request. When Doe applied to take Step 2 of the USMLE, he again requested testing accommodations from the NBME. Although Doe only requested time and a half for Step 2, the NBME provided Doe with double time. It did so because the computerized version of the test, which is the version of Step 2 Doe was applying to take, is designed so that the only available extra time accommodation is double time. The NBME expects to report Doe's Step 2 scores sometime in December of this year.

Doe has sent flagged Step 1 scores to some, but not all, of the physical medicine and rehabilitation residency and internship programs to which he is applying. He has been offered interviews at...

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