Amgad Hessein v. The American Board of Anesthes

• Court: Court of Appeals for the Third Circuit
• Decided: October 7, 2015
• Docket: 15-2249
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________

No. 15-2249 ____________

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 __________________________________

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 __________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) October 6, 2015 Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: October 7, 2015) ____________

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

1 In originally obtaining Board certification -- in 1997 for anesthesiology and in 2009 for pain management – Hessein completed all of the Board’s requirements, including residency training and passing written and oral examinations.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.6 does not constitute binding precedent.

2 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

2 Hessein does not challenge this order on appeal. 3 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 was a breach of any agreement or duty of care owed to him by the Board, and

could not show that the Board lied about his circumstances.

Hessein appeals. We have jurisdiction under 28 U.S.C. § 1291. In his brief on

appeal, he contends that he did not receive proper notice of the enforceability of the

Board’s rule regarding revocation, that enforcement of the rule was arbitrary, and thus

that his constitutional right to due process was violated. He also challenges the District

Court’s disposition of his antitrust and state law claims.

We will affirm. We review a District Court’s grant of summary judgment de

novo. Alcoa, Inc. v. United States, 509 F.3d 173, 175 (3d Cir. 2007). Summary

judgment is appropriate “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). The moving party has the initial burden of identifying evidence that he believes

shows an absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 323 (1986). Moreover, we are required to view the facts in the light most favorable

to the non-moving party, and make all reasonable inferences in his favor. See

Armbruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). But, if the moving party

has carried its burden, the nonmovant must then come forward with evidence showing 4 that there is a triable issue. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.

574, 587 (1986). A triable, or genuine, issue of material fact is one that could change the

outcome of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

To establish a claim under section 1983, a plaintiff must show that there was (1) a

violation of a federally protected constitutional or statutory right, (2) by state action or

action under color of law. Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1264 (3d Cir. 1994); see also Flagg Bros., Inc., v. Brooks, 436 U.S. 149, 156 (1978).

Hessein claims a federally property interest in his Board certifications in anesthesiology

and pain management, but he cannot show that the three remaining defendants are state

actors, or that they acted under color of law. Specifically, the Board “is a private

association. It does not issue licenses to practice; it simply certifies achievement of a

standard of excellence. It does not wield any state power and therefore need not use the

procedures the due process clause requires of the government.” Sanjuan v. American Bd.

of Psychiatry and Neurology, Inc., 40 F.3d 247, 250 (7th Cir. 1994). We agree with the

District Court that the Board is not a state actor, and that the requirement that Hessein

have an unrestricted medical license in order to keep his Board certifications does not

implicate state action. Therefore, due process protections do not apply.

As to his antitrust claims, Hessein argued that the defendants conspired with the

state medical boards to revoke his certifications and disrupt his medical practice, but his

complaint does not state a plausible claim of an unlawful antitrust conspiracy. The

summary judgment record shows that the Board’s actions were independent of the actions

taken by the state medical boards, and “a conclusory allegation of agreement … does not

5 supply facts adequate to show illegality” under the federal antitrust laws. Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 557 (2007).

Hussein also argued that the Board has monopolized the academic certification of

his specialties. We seriously doubt whether the revocation of a physician’s board

certifications because his license has been temporarily suspended due to a pending

criminal indictment could ever be considered anti-competitive under the federal antitrust

laws, but, assuming arguendo, that Hessein asserts a challenge to an exclusionary scheme

that keeps him out of the market, the narrow scope of his request for injunctive relief

dooms his claim. In Daniel v. American Bd. of Emergency Medicine, 428 F.3d 408, 438-

39 (2d Cir. 2005), the Second Circuit Court of Appeals held that the emergency medicine

physician-plaintiffs did not suffer an antitrust injury and did not have standing to sue

when their medical specialty certification board denied them an opportunity to take the

certification examination because they had not completed a formal residency program in

emergency medicine. The court reasoned that the physician-plaintiffs did not seek to

eliminate the residency training requirement; rather, they sought to restore the practice

track as an alternative to residency training so that they could qualify for the examination.

“[B]y seeking relief that would permit them to join but not end the alleged exclusive

arrangement, plaintiffs make plain that they are not complaining of an antitrust injury.”

Id. at 441. As in Daniel, by seeking the restoration of his certificates, Hessein seeks to

join the alleged exclusive arrangement and thus does not state an antitrust injury.

Last, we discern no error in the District Court’s disposition of Hessein’s state law

claims. The Court discussed each claim separately and properly applied governing New

Jersey law. We write only to emphasize that the Board promulgated clear rules and 6 regulations and procedural mechanisms for issuing, maintaining, and revoking

certifications.3 These rules apply to Hessein. To the extent that the Board promises

certain protections to its diplomates, such as notice of revocation and an opportunity to

challenge it, the summary judgment record establishes that Hessian received prior notice

that his certificates were subject to revocation and an opportunity to defend. On or about

August 1, 2012, the Board sent a letter by certified mail to Hessein to an address provided

by him, which was signed for and accepted on his behalf, informing him that because his

medical licenses had been suspended, it was initiating proceedings against him to revoke

his Board certifications.4 That the Board has the authority, pursuant to its clearly stated

policies, to revoke those certifications under the circumstances presented here cannot

seriously be disputed. Moreover, no reasonable jury could find that the defendants dealt

unfairly or in bad faith in revoking Hessein’s certifications.

In sum, Hessein’s medical licenses were temporarily suspended, and whether or

not he agrees that this action taken by the New Jersey and New York licensing boards

was proper,5 the Board applied its policy that a diplomate’s certification shall be revoked

if he or she does not maintain a medical license from at least one jurisdiction in the

United States or Canada that is unrestricted. There can be no genuine dispute that a

3 The Board’s policies are set forth in a “Booklet of Information.” 4 Following revocation, Hessein’s counsel sought an explanation from the Board. Counsel for the Board wrote to Hessein’s counsel in April, 2013 and explained the Board’s reasons for revoking Hessein’s certifications. 5 Hessein claims that he was “framed” by “disgruntled employees.” Appellant’s Brief, at 43. If Hessein ultimately is acquitted of the charges against him or the charges are withdrawn, he may reapply for certification, N.T., 3/26/15, at 11.

7 medical license is not unrestricted when it is temporarily suspended due to a pending

criminal indictment. The Board breached no contract with Hessein, breached no duty of

care owed to him, and did not defame him by noting on its website that his certifications

had been revoked.

For the foregoing reasons, we will affirm the order of the District Court awarding

summary judgment to the defendants.