# AFZAL v. AMERICAN BOARD OF INTERNAL MEDICINE

> District Court, E.D. Pennsylvania · January 20, 2022

URL: https://www.frixlaw.com/law-library/cases/10402541

## Case

- **Court:** District Court, E.D. Pennsylvania
- **Decided:** January 20, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10402541. Public record. Not legal advice.