VICENTE ELIAS v. EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES

 
(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1447-09T3

VICENTE ELIAS,

Plaintiff-Appellant,

v.

EDUCATIONAL COMMISSION FOR

FOREIGN MEDICAL GRADUATES

(ECFMG) and NEW JERSEY STATE

BOARD OF MEDICAL EXAMINERS

(NJSBME),

Defendants-Respondents.

________________________________

November 4, 2010

 

Argued: September 22, 2010 - Decided

 

Before Judges Cuff and Simonelli.

 

On appeal from Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-82-08.

 

Anthony J. Brady, Jr., argued the cause for appellant.

 

Heather L. Hopkins (Morgan, Lewis & Bockius, L.L.P.) of the New York bar, admitted pro hac vice, argued the cause for respondent Educational Commission For Foreign Medical Graduates (Morgan, Lewis & Bockius, L.L.P., attorneys; Brian W. Shaffer and Ms. Hopkins, on the brief).

 

PER CURIAM

Plaintiff Vicente Elias appeals from the October 15, 2009 Chancery Division order granting summary judgment to defendant Educational Commission for Foreign Medical Graduates (ECFMG) and dismissing his complaint with prejudice.1 We affirm.

The following facts are derived from evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

ECFMG is a private, not-for-profit organization, which through its certification program assesses the readiness of a foreign medical school graduate (FMSG) to enter residency or fellowship programs in the United States. ECFMG is not a subdivision of or affiliated with any governmental entity, its Board of Trustees receives no funding from any governmental entity, no individual from defendant New Jersey State Board of Medical Examiners (NJSBME) sits on ECFMG's Board of Trustees, and it sets its own standards for an FMSG's eligibility to take the United States Medical Licensing Examination (USMLE).

An FMSG seeking a license to practice medicine in New Jersey must

demonstrate successful completion of the full medical curriculum, didactic elements and clinical training prescribed by the medical school and by the country in which the medical school is located and within which the training took place, and successful completion of all of the educational requirements to practice medicine in that country.

 

[N.J.A.C. 13:35-3.11(c).]

 

An FMSG must also

demonstrate to the satisfaction of the [NJSBME] that he or she holds certification issued by the [ECFMG] which was granted following the attainment of a passing score on an acceptable examination and verification of his or her credentials by ECFMG.

 

[N.J.A.C. 13:35-3.11(f).]

 

Consequently, ECFMG's role in this process is to verify the FMSG's credentials and issue a certification following a passing score on the USMLE. See ibid.

ECFMG certification renders an FMSG eligible to apply for admission to residency programs in the United States and to take Step 1 of the USMLE. ECFMG certification provides assurances to directors of residency or fellowship programs in the United States that FMSGs have met the minimum standards of eligibility required to enter those programs. Although ECFMG certification is accepted by state licensing boards in partial satisfaction of their requirements for licensure, including the NJSBME, it does not, in and of itself, entitle FMSGs to licensure in any state. FMSGs are still required to apply for and obtain the approval of such licensing boards in accordance with that state's requirements and procedures.

To obtain ECFMG certification, an FMSG must pass Steps 1 and 2 of the USMLE, which is a three-step examination for medical licensure in the United States and the standard medical and surgical licensing examination in the State of New Jersey pursuant to N.J.A.C. 13:35-3.1(a). To be eligible to take Step 1, an FMSG must have completed all educational requirements to practice medicine in the country in which he or she received his or her medical education, and received a final medical diploma approved by that country. ECFMG relies on the determination of the sovereign country in which the medical school is located as to what constitutes a final medical diploma. In this case, Mexico has approved the Titulo de Medico Cirujano as the final medical diploma. In order to earn the Titulo de Medico Cirujano, students have to complete a four year didactic program, a one-year clinical internship, and one year of community service.

Plaintiff attended the Universidad Autonoma de Guadalajara Medical School (UAGMS) in Mexico from 1987 to 1991. He admits he did not complete the two additional requirements of a clinical internship and community service, which are required to receive the Titulo de Medico Cirujano. Instead, he received the "Diploma de Medico Cirujano," which merely showed he completed the four-year didactic program.

In 1994, plaintiff applied to ECFMG to take Step 1 of the USMLE. He certified that he had received the degree, "Medico Cirujano," from the UAGMS. Plaintiff failed the test. ECFMG subsequently learned that plaintiff was ineligible to take Step 1 because he did not have a final medical diploma within the meaning of ECFMG's eligibility requirements.

Plaintiff applied again in 2007 to take Step 1; however, he still had not received the required "final" medical diploma. He also had not attended an approved Fifth Pathway program,2 the successful completion of which, at the time, the NJSBME would have accepted in lieu of ECFMG certification. N.J.A.C. 13:35-3.11(f). When plaintiff filed his complaint in June 2008, the Fifth Pathway program was still a viable alternative. Also, he could have returned to UAGMS to complete the necessary requirements for the Titulo de Medico Cirujano.

On November 20, 2007, ECFMG notified plaintiff that it had rejected his application to take Step 1 because he had not produced a copy of a final medical diploma. ECFMG subsequently advised plaintiff that he could re-apply to take Step 1 in time for acceptance to a Fifth Pathway program, if he submitted a letter indicating his intent to pursue that program. There is no evidence that plaintiff re-applied with the necessary documentation. Instead, he filed a complaint alleging that ECFMG and NJSBME had arbitrarily and capriciously denied him the opportunity to take Step 1 in violation of his procedural and substantive due process and equal protection rights under the United States and New Jersey constitutions.

ECFMG filed a motion for summary judgment seeking dismissal of plaintiff's complaint for failing to establish state action. Plaintiff countered that he established state action and that ECFMG illegally delegated the authority NJSBME had vested in it by permitting UAGMS to determine the requirements to take the USMLE, in violation of the Administrative Procedure Act (APA), N.J.S.A. 52:14B-1 to -25. The trial judge granted the motion, finding plaintiff failed to establish state action or that ECFMG illegally delegated its authority to UAGMS to determine the requirements to take the USMLE.

We agree that plaintiff failed to establish state action. The evidence does not satisfy any of the three tests (i.e., the "close nexus" test, symbiotic relationship test, or "public function" test) required to establish that the ECFMG is a state actor. See Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S. Ct. 449, 453, 42 L. Ed. 2d 477, 484 (1974); Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25, 81 S. Ct. 856, 861, 6 L. Ed. 2d 45, 51-52 (1961); Terry v. Adams, 345 U.S. 461, 469-70, 73 S. Ct. 809, 813-14, 97 L. Ed. 1152, 1160 (1953).

Assuming there was state action, summary judgment was still appropriate because plaintiff cannot prove a violation of his procedural or substantive due process rights. To establish his procedural due process claim, plaintiff must show that he has a protected liberty or property right to take Step 1. "Property interests . . . are created[,] and their dimensions are defined[,] by existing rules or understandings that stem from an independent source such as state law. . . ." Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548, 561 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Ibid.

Whereas procedural due process rights are created by state law, substantive due process rights emanate from the constitution. Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 229, 106 S. Ct. 507, 515, 88 L. Ed. 2d 523, 535 (1985) (Powell, J., concurring).

[S]ubstantive due process . . . "does not protect individuals from all governmental actions that infringe liberty or injure property in violation of some law." Rather, substantive due process is reserved for the most egregious governmental abuses against liberty or property rights, abuses that "shock the conscience or otherwise offend . . . judicial notions of fairness . . . . "

 

[Rivkin v. Dover Twp. Rent Leveling Bd., 143 N.J. 352, 366, (quoting PFZ Props., Inc. v. Rodriguez, 928 F.2d 28, 31 (1st Cir.), cert. granted, 502, U.S. 956, 112 S. Ct. 414, 116 L. Ed. 2d 435 (1991), cert. dismissed, 503 U.S. 257, 112 S. Ct. 1151, 11 L. Ed. 2d 400 (1992); Weimer v. Amen, 870 F.2d 1400, 1405 (8th Cir. 1989)), cert. denied, 519 U.S. 911, 117 S. Ct. 275, 136 L. Ed. 2d 198 (1996).]

 

Plaintiff lacks a legitimate claim of entitlement to take Step 1 because he has not completed all educational requirements to practice medicine in Mexico or received a final medical diploma. Plaintiff also lacks a legitimate claim of entitlement to a medical license because he has not successfully completed the full medical curriculum, both didactic and clinical portions, prescribed by UAGMS and successfully completed all educational requirements to practice medicine in Mexico. See N.J.A.C. 13:35-3.11(c).

Further, plaintiff has no right to a medical license. We have indicated that "a protected right in a professional license comes into existence only after a license has been obtained[,]" and that "[a]n applicant for a license has merely an expectation of obtaining a property interest. Such expectation is not afforded the same protection under the Fourteenth Amendment as is the property right itself." Graham v. N.J. Real Estate Comm'n, 217 N.J. Super. 130, 136 (App. Div. 1987). "Thus, before a medical license is issued there is no property right which must be safeguarded by due process." Valdes v. N.J. State Bd. of Med. Exam'rs, 205 N.J. Super. 398, 405 (App. Div. 1985).

As for his substantive due process claim, what occurred here falls far short of shocking the judicial conscience. Rather, the evidence confirms that plaintiff is not qualified to take Step 1 or obtain a medical license in New Jersey.

Summary judgment is also appropriate as to plaintiff's equal protection claim. In order to subject ECFMG's requirements to the strict scrutiny analysis under equal protection, plaintiff had to show that those requirements discriminate against a suspect class:

Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, [courts] presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest.

 

[City of New Orleans v. Dukes, 427 U.S. 297, 303, 96 S. Ct. 2513, 2516-17, 49 L. Ed. 2d 511, 517 (1976).]

 

Plaintiff argues that ECFMG applies a higher standard to FMSGs to take Step 1 than to students currently enrolled at the same foreign medical school. Thus, FMSGs are the "suspect class." However, FMSGs do not constitute a suspect class, which is created by a distinction made on the basis of race, religion, or alienage. Ibid. Even assuming FMSGs constitute a suspect class, plaintiff is not a member of the class because he is not an FMSG. Accordingly, his equal protection claim fails.

Finally, assuming there is state action, plaintiff's illegal delegation of authority claim also fails. ECFMG is not a "state agency" within the meaning of the APA. See N.J.A.C. 52:14B-2(a). It is a private organization that simply verified an FMSG's credentials to assure that the requirements of N.J.A.C. 13:35-3.11(c) had been met.

Affirmed.

1 On January 27, 2009, plaintiff voluntarily dismissed the complaint without prejudice as to defendant New Jersey State Board of Medical Examiners.

2 The Fifth Pathway program, created by the American Medical Association in 1971, permits foreign medical school students who completed the four-year didactic program to complete their supervised clinical program at a United States medical school in order to become eligible for entry to a United States residency training program and ultimately obtain a license to practice medicine in the United States. New Jersey codified its support for the Fifth Pathway program in N.J.A.C. 13:35-1.2.