AFZAL v. AMERICAN BOARD OF INTERNAL MEDICINE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FIAZ AFZAL, et al : CIVIL ACTION

:

v. : NO. 22-86

:

AMERICAN BOARD OF INTERNAL :

MEDICINE :

MEMORANDUM

KEARNEY, J. January 20, 2022

Doctors Fiaz Afzal of Canada and his spouse Shahida Shuja of Texas sue the American

Board of Internal Medicine seeking $100,000 in damages and an order directing the Board to

allow Dr. Afzal to take a new assessment test to become Board certified in internal medicine.

The Doctors invoke our limited jurisdiction by arguing the Board violated Dr. Afzal’s civil rights

by requiring him to take one version of an exam when other physicians who are already Board

certified are permitted to take another version.1 The Doctors allege the Board’s different tests

for differently situated doctors based on their present certification status discriminates against

Dr. Afzal because he is not presently certified and therefore must take a more difficult exam.

They allege the more difficult exam disadvantages “Black Brown” doctors. We must dismiss the

Doctors’ Complaint for failing to state a claim, but we grant them leave to timely amend if they

can state a claim within our limited subject matter jurisdiction.

I. Alleged pro se facts

The Board now permits physicians who are already Board certified to take a new

assessment called the Longitudinal Knowledge Assessment with more favorable “key features”

to test-takers.2 But if a physician like Dr. Afzal is seeking a new Board certification, the

physician must take a different test. The Doctors characterize this different test as the “old way

of testing” which does not contain these favorable “key features,” and allegedly disadvantages

“Black Brown doctors” who tend to score “significantly lower than their white peers.” 3

The Board also has a “history of discrimination” against Dr. Afzal, including mixing up

his results with another candidate’s results in 1996 but refusing to acknowledge it,4 canceling his

test in 2016 due to a criminal conviction he purports had already been expunged,5 and not

providing him extra time during a test in 2019 when the fire alarm went off and he lost test-

taking time.6 The Board most recently refused Dr. Afzal’s request to sit for examination in 2020

because his Board eligibility ended in 2019.7 The Doctors also challenge the Board’s function in

the medical field, alleging it acts outside of its authority and/or with no authority in imposing

certain requirements on its applicants to become Board certified.8

II. Analysis

The Doctors allege the Board has an “unconstitutional policy of discrimination” and is

discriminating and retaliating against Dr. Afzal by not allowing him to take the new exam with

“favorable features.”9 They allege the Board’s “policy of expiration of eligibility of physician

Exhibit 4 to take certifying exam violates [Dr. Afzal’s] constitutional rights to be treated equally

and fairly.”10 Dr. Shuja alleges she has been harmed economically because her husband cannot

obtain Board certification and thus, not work.11 They seek $100,000 in compensation and an

order requiring the Board to allow Dr. Afzal to take the exam offered to Board certified

physicians.12 We liberally construe the Doctors’ Complaint as seeking redress for alleged

constitutional violations – including denial of equal protection under the Fourteenth

Amendment.13 But the Doctors fail to state a claim against the Board because they fail to allege

the Board is a state actor possibly responsible for depriving civil rights.

Having granted Drs. Afzal and Shuja leave to proceed in forma pauperis, Congress

directs we dismiss a claim filed without paying fees which we find frivolous or malicious; fails

to state a claim on which relief may be granted; or seeks monetary relief against a defendant who

is immune from such relief.14 When considering whether to dismiss a complaint for failure to

state a claim under section 1915(e)(2)(B)(ii), we apply the same standard used under Federal

Rule of Civil Procedure 12(b)(6).15 We accept all factual allegations in the complaint as true and

construe those facts in the light most favorable to the plaintiffs to determine whether they state a

claim for relief plausible on its face.16 We must be “mindful of our ‘obligation to liberally

construe a pro se litigant’s pleadings …’”17 We “remain flexible” and “apply the relevant legal

principle even when the complaint has failed to name it.”18 But “pro se litigants still must allege

sufficient facts in their complaints to support a claim” and “cannot flout procedural rules – they

must abide by the same rules that apply to all other litigants.”19

Congress provides: “Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State …, subjects, or causes to be subjected, any citizen of the United

States … to the deprivation of any rights, privileges, or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action at law, suit in equity, or other

proceeding for redress, except that in any action brought against a judicial officer for an act or

omission taken in such officer’s judicial capacity, injunctive relief shall not be granted ….”20

Congress does not confer rights upon a plaintiff through Section 1983. Rather, the civil rights

law is the vehicle used to bring federal constitutional claims in federal court. To proceed, Drs.

Afzal and Shuja must plead two elements: (1) a person acting under color of state law committed

the complained-of conduct; and (2) the conduct deprived each of rights, privileges, or immunities

secured by the Constitution or laws of the United States.21

The Doctors fail to plead a person acted under the color of state law. The Board is a

private entity.22 The Doctors must allege the Board acted under the color of state law. Congress

allows suits against private parties acting under color of state law where (1) the private party

deprived the plaintiff of a constitutional right by exercising “a right or privilege having its source

in state authority” and (2) where the private party may be “appropriately characterized as [a]

‘state actor’” where the private party “is a state official, … has acted together with or has

obtained significant aid from state officials, or [where his] conduct is otherwise chargeable to the

State.”23 To assist in this inquiry, the Supreme Court has articulated the “‘public function’ test,

the ‘close nexus’ test[,] and the ‘symbiotic relationship’ test.”24

The Doctors do not allege the Board exercised a right or privilege having its source in

state authority or the Board is a state official, acted with a state official, or the Board’s conduct is

chargeable to the state.25 They instead broadly: compare states’ medical licensing requirements

– generally and without reference to a specific state – to the Board’s certification requirements

and imply the Board imposed stricter requirements than the states’ medical licensing

requirements;26 allege Board certification is not required to practice medicine in the United

States;27 suggest the Board is not permitted to “determine competency or readiness for

independent practice” or “require retraining in a residency program” under state or federal law;28

and, allege the Board’s policy requiring a physician to redo a residency program after a certain

period of time without certification “overrides” the states’ licensing function.29 They allege the

Board’s purportedly discriminatory and retaliatory requirements for certification “short

circuited” Dr. Afzal’s medical career, in part due to Dr. Afzal’s purported inability to “obtain

enrollment in Medicaid/Medicare.”30 While the Doctors challenge the role of the Board in the

medical field and disagree with un-named entities’ requirement a physician be Board certified to

practice with the entity when the physician has a state-issued license, they fail to plead the Board

is a state actor.31

III. Conclusion

We dismiss with leave to timely amend if the Doctors can assert claims consistent with

Federal Rule of Civil Procedure 11 and within our limited subject matter jurisdiction.32

1 See, e.g. ECF Doc. No. 2. The Doctors proceeding pro se do not plead in numbered paragraphs

required by Federal Rule of Civil Procedure 10(b). We are unable to cite to specific paragraphs

of their pro se Complaint. We instead cite to pages of the Complaint as paginated by CM/ECF.

The Doctors describe themselves at various times as “me.” We construe any reference to “me”

as a reference to Dr. Afzal.

The Doctors do not adequately plead our subject matter jurisdiction under 28 U.S.C. § 1332

because they fail to plead their citizenship or the citizenship of the Board. ECF Doc. No. 2 at 2.

They seemingly try to assert federal question subject matter jurisdiction alleging a violation of

their civil rights under 42 U.S.C. § 1983.

2 ECF Doc. No. 2 at 3.

3 Id.

4 Id. at 5. The Doctors attach an article from December 2020 discussing how the Kentucky

Office of Bar Admissions notified fifteen law students they passed the bar but actually an error

occurred and they did not pass the exam. The relevance Dr. Afzal’s medical board certification

exam results in 1996 is unclear.

5 Id. at 6. The Doctors attach a letter from the Board explaining Dr. Afzal could not take the

2016 Certification examination because he must have a valid, unrestricted, and unchallenged

medical license to sit for the exam, but Dr. Afzal’s license had been suspended and his DEA

registration revoked due to a Medicare fraud conviction.

6 Id. at 6–7.

7 Id. at 6.

8 See, e.g. ECF Doc. No. 2. Drs. Afzal and Shuja allege:

• “[The Board] is a private organization which is not subject to any oversight by any

regulatory organization. [The Board] is acting as de facto absolute power to control the

right to practice Medicine in United States and elsewhere.” Id. at 3.

• “State Medical Boards require licensing of practicing physicians in USA. [Board]

certification is NOT required for licensing in any US states but [the Board] is introducing

its own regulation to exclude diverse doctors of minority origin.” Id. at 3.

• “[The Board] has self made an expiration of eligibility rule wherein it creates an

ineligibility determination which requires RETRAINING in the specialty for one year

and only then can the physician take any kind of assessment whatsoever . . . Expiration of

Eligibility to take any assessment is a new concept of discrimination which is NOT a

feature of any State Medical Boards that license physicians in USA. State Medical

Boards accept United States Medical Licensing examination USMLE 3 as meeting

requirements for licensure. Once a physician is licensed there is no feature of Expiration

of Eligibility as done by [the Board] which is NOT a state licensing Board. Each State

Medical Board require renewal of license but there is no such thing as Expiration of

Eligibility to take any exam. If state medical Board require physician can take Special

Purpose Exam SPEX administered by USMLE Federation of State Medical Board

FSMB.” Id. at 4 (emphasis and grammatical errors in original).

• “[The Board] is not authorized under any state or Federal law to determine competency

and readiness for independent practice at the current standards of training. This is the job

of State Medical Boards to determine competency to practice if any deficiencies then

State Medical Board require SPEX exam by USMLE/FSMB.” Id. at 7.

• “[The Board] has no authority to order retraining in a residency program . . . [The Board]

has sidelined my career as even Medicaid provider enrollment require Board certification

status in spite of me being licensed in several US states.” Id. at 9.

• “State Medical Boards . . . do not require RETRAINING in the medical specialty after a

physician has been licensed once.” Id. at 10.

• “[The Board’s] policy of expiration of Eligibility of physician Exhibit 4 to take certifying

exam violates my constitutional rights to be treated equally and fairly. This policy

overrides the State Board of Medical Examiners of each state policy to determine

competence to practice medicine independently according to prevailing standards . . .

[The Board] has not been authorized to administer such a discriminatorily policy by any

state laws whatsoever. Licensing is jurisdiction of each State Medical Boards NOT [the

Board]. State Medical Board require SPEX exam if needed to determine competency but

FSMB never requires RETRAINING as [the Board] requires.” Id. at 11–12 (emphasis

and grammatical errors in original).

• “[The Board] continued actions have prevented me from obtaining enrollment in

Medicaid/Medicare whatsoever short circuiting my medical career in spite of being

licensed by State Medical Boards in New Jersey, Florida, Nevada, North Carolina and

Illinois to name a few valid licenses.” Id. at 12 (grammatical errors in original).

9 Id. at 7, 11. Dr. Afzal also claims the “10 year [old traditional] exam” “was designed to

exclude diverse doctors who complain about any [Board] exam issues” and “[h]igh scores on 10

yr MOC are strongly correlated with socio economic status and tend to disadvantage Black

Brown doctors who score significantly lower than their white peers.” Id. at 7.

10 Id. at 11.

11 Id. at 9 (“My spouse Dr. Shahida Shuja has been financially destroyed as I am not able to

enroll in the new Longitudinal assessment option to continue Board certification issues.”).

12 Id. at 12.

13 Id. at 11–12.

14 28 U.S.C. § 1915(e)(2)(B).

15 Elansari v. Univ. of Pa., 779 F. App’x 1006, 1008 (3d Cir. 2019) (citing Allah v. Seiverling,

229 F.3d 220, 223 (3d Cir. 2000)).

16 Id. (quoting Fleisher v. Standard Ins. Co., 679 F.3d 116, 120 (3d Cir. 2012)).

17 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Higgs v. Att’y Gen., 655 F.3d

333, 339 (3d Cir. 2011)).

18 Yogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (quoting Mala v. Crown Bay Marina, Inc., 704

F.3d 239, 244 (3d Cir. 2013)).

19 Id. (quoting Mala, 704 F.3d at 245).

20 42 U.S.C. § 1983.

21 Schneyder v. Smith, 653 F.3d 313, 319 (3d Cir. 2011).

22 See American Board of Internal Medicine, https://www.abim.org/about/ (last visited Jan. 18,

2022) (“ABIM is a physician-led, non-profit, independent evaluation organization driven by

doctors who want to achieve higher standards for better care in a rapidly changing world.”);

Goussis v. Kimball, 813 F. Supp. 352, 358 (E.D. Pa. 1993) (“Because ABIM is a private, non-

profit unregulated entity which receives no state funds and which has not been delegated by the

state any role in the licensing or regulation of professional conduct, and whose role only involves

the preparation, administration, and grading of a test which, inter alia, is used by peers to

determine recognition of high professional achievement (board certification), it is not a state

actor and its conduct does not constitute state action for purposes of imposing liability under

section 1983”); see also Munsif v. Cassel, 331 F. App'x 954, 959 (3d Cir. 2009) (citing to

Goussis for proposition the Board is not a state actor under Section 1983 and finding plaintiff

failed to allege the Board acted under the color of state law for claim the Board’s tests have

racial bias); Alston v. Nat'l Conf. of Bar Examiners, 314 F. Supp. 3d 620, 625 (E.D. Pa. 2018)

(dismissing constitutional claims for lack of state actor against the National Conference of Bar

Examiners and comparing the same to the American Board of Internal Medicine, citing Judge

Robreno’s opinion in Goussis approvingly); Am. Bd. of Internal Med. v. Von Muller, No. 10-

2680, 2011 WL 857337, at *2–5 (E.D. Pa. Mar. 10, 2011), aff'd (3d Cir. Sept. 12, 2013) (relying

on Goussis, finding Goussis indistinguishable, and dismissing counterclaim against the Board for

constitutional violations).

23 Diamond v. Pa. State Educ. Assoc., 972 F.3d 262, 270-71, n.2 (3d Cir. 2020) (quoting Lugar v.

Edmondson Oil Co., 457 U.S. 922, 939 (1982)).

24 Von Muller, 2011 WL 857337, at *3 (citing Brown v. Philip Morris, Inc., 250 F.3d 789, 801

(3d Cir. 2001)); see also Jenkins v. Ne. Treatment Centers, Inc., No. 21-1421, 2021 WL

5227186, at *5 (E.D. Pa. Nov. 10, 2021) (discussing three “broad tests” to determine when state

action exists).

25 See supra note 22.

26 See, e.g. ECF Doc. No. 2 at 3, 4, 10.

27 Id. at 3.

28 Id. at 7.

29 Id. at 11–12.

30 Id. at 12.

31 See, e.g. supra note 22.

32 The gravamen of this Complaint pertains to Dr. Afzal, with one allegation the Board harmed

Dr. Shuja because her husband, Dr. Afzal, cannot practice medicine in the United States absent

his Board certification. Dr. Afzal’s claim fails. We lack subject matter jurisdiction over Dr.

Shuja’s derivative claim as it is dependent on Dr. Afzal stating a claim.