United States District Court, S.D. New York
April 29, 2004.
JOHN DOE, student of the New York College of Podiatric Medicine, GERALD MAURIELLO, JR., MORRIS SUKOFF, DANIEL GODFREY, SUPREET GHUMAN, KERRI LEE, HENRIETTA I. OBIDIOBO, MARY THOMAS, APRIL BAILEY, MARK GASPARINI, GABRIELA MENDEZ, RACJARA PUROHIT, MARK MORANO, ANKUR OHARIA, CARL JEAN, CHARLES BAHDI, DANY SABBOUR, MIKA HAYASHI, MIKHAIL BURAKOVSKIY, ILONA BARLAM, SERGEY FEDASHOV, DERRICK JACKSON, MARINA GREYMAN, EMANUEL SERSI, JASON P. GALANTE, JOYCE M. JENKINS and STANLEY IDICULLA, Plaintiffs, -against- THE NATIONAL BOARD OF PODIATRIC MEDICAL EXAMINERS, ROBERT A. CHRISTMAN, JEFFERY S. GERLAND, MURRAY B. GOLDSTEIN, MICHAEL J. HRILJAC, JOHN H. McCORD, NANCY G. ROZRAN, KARA L. SCHMITT, STEPHEN F. STERN, MICHAEL L. STONE, STUART L. TESSLER, RICHARD VIEHE, STUART J. WERTHEIMER and CHARLES W. GIBLEY, JR., individually and in their roles as officeres and members of the Board of NBPME, and THE CHAUNCEY GROUP INTERNATIONAL, LTD., Defendants
The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Plaintiffs, podiatry students at the New York College of Podiatric
Medicine ("NYCPM"), have moved for partial summary judgment on their
breach of contract claim against defendant National Board of Podiatric
Medical Examiners ("NBPME"). For the reasons set forth below, this motion
is granted, and NBPME is ordered to provide a hearing to those plaintiffs
who renew their requests for same as set forth below.
This action was commenced on June 3, 2003 when plaintiffs filed their
complaint and an order to show cause seeking a preliminary injunction
compelling defendants NBPME and Chauncey Group International, Ltd.
("Chauncey") to release plaintiffs' scores from the July 2002 Part I
NBPME Examination and to certify the validity of those scores. The
request for a preliminary injunction was denied in an opinion dated June
19, 2003, familiarity with which is assumed. See Doe v. National Bd.
of Podiatric Examiners, No. 03 Civ. 4034 (RWS), 2003 WL 21403698
(S.D.N.Y. June 19, 2003) ("Doe I").
The instant motion was argued on December 10, 2003, and marked fully
submitted at that time.*fn1 The Facts
The facts are set forth based upon the undisputed portions of the
attorney affidavit submitted by plaintiffs, the Local Rule 56.1 statement
submitted by NBPME and the record, and are undisputed except as noted
NBPME provides a series of examinations which are used to certify the
proficiency of podiatric physician candidates. The results of these
examinations are used by state licensing boards and other agencies to
determine whether candidates have the minimum knowledge and competencies
necessary to practice podiatric medicine, and whether to license such
candidates as doctors of podiatric medicine.
Plaintiffs sat for the NBPME Part I Examination adminis-tered in July
2002 (the "July 2002 Exam"). Prior to taking the July 2002 Exam, each
plaintiff entered into a contract with NBPME embodied in NBPME's Bulletin
of Information (the "Bulletin"). Each plaintiff paid $625 to take the
July 2002 Exam.
The Bulletin reserves to NBPME "the sole right to determine whether or
not an examination is valid or invalid." (Bulletin at 11.) It further
informs examination candidates that "any attempt to reproduce all or part of an examination is strictly
prohibited," and "examination scores may be invalidated in the event of
this type of suspected breach." (Id.)
After the administration of the July 2002 Exam, Chauncey received
evidence that the content of the examination had been accessible to
students at certain schools of podiatric medicine both prior to and
during the administration of the test. Chauncey investigated the
distribution and availability of documents containing secure test
questions and, as a result of its investiga-tion, recommended to NBPME
that the scores of students at four of the seven schools of podiatric
medicine in the United States, including NYCPM, on the July 2002 Exam be
invalidated. NBPME accepted Chauncey's recommendation and invalidated the
scores of the students at NYCPM and three other schools.
In conjunction with its investigation, Chauncey received and forwarded
to NBPME an anonymous mailing which enclosed various e-mails NYCPM
students had purportedly sent during the administra-tion of the July
2002 Exam. In the e-mails sent to Chauncey, several NYCPM students,
including some plaintiffs, transmitted test content they had recalled
from the examination to a "2004" group e-mail address. This type of
effort to reproduce the content of the examination is prohibited by the
Bulletin. On or about October 21, 2002, plaintiffs received a notice from NBPME
indicating that NBPME had declared the scores of all NYCPM students on
the July 2002 Exam invalid and that NBPME had directed Chauncey to
withhold plaintiffs' scores.
Plaintiffs thereafter requested hearings to appeal NBPME's
Under the heading "Appeal Procedure," the Bulletin provides that:
If a candidate's scores are withheld or canceled,
that candidate may, within 15 business days of the
notifica-tion, submit a written request for a
hearing. The purpose of the hearing will be to
determine whether there exists sufficient,
competent, and credible evidence that the
candidate acted improperly at the time of the
National Board examinations. The time, date, and
place of the hearing will be set by the National
(Bulletin at 8.)
By a letter dated November 21, 2002, NBPME denied plaintiffs' requests
on the grounds that the appeal procedure set forth in the Bulletin was
not available to them, as it applied only when NBPME had withheld or
canceled an individual candidate's score based on a finding that the
candidate had acted improperly.
NBPME offered all examination candidates affected by the invalidation
of the July 2002 Exam scores an opportunity to take a specially scheduled re-test of the examination, free of charge, in
January of 2003. Plaintiffs took the January 2003 re-test at no charge.
I. The Summary Judgment Standard
Summary judgment is granted only if there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter
of law. Fed.R.Civ.P. 56(c); see Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); SCS Communications, Inc.
v. Herrick Co., Inc., 350 F.3d 329, 338 (2d Cir. 2004); see
generally 11 James Wm. Moore, et al., Moore's Federal
Practice ¶ 56.11 (3d ed. 1997 & Supp. 2004). The court will
not try issues of fact on a motion for summary judgment, but, rather,
will determine "whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 251-52 (1986).
"The party seeking summary judgment bears the burden of establishing
that no genuine issue of material fact exists and that the undisputed
facts establish her right to judgment as a matter of law." Rodriguez
v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir. 1995). In
determining whether a genuine issue of material fact exists, a court must
resolve all ambiguities and draw all reasonable inferences against the
moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587
(1986); Gibbs-Alfano v. Burton, 281 F.3d 12, 18 (2d Cir. 2002).
Thus, "[s]ummary judgment may be granted if, upon reviewing the evidence
in the light most favorable to the nonmovant, the court determines that
there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law." Richardson v. Selsky,
5 F.3d 616, 621 (2d Cir. 1993).
A material fact is one that would "affect the outcome of the suit under
the governing law," and a dispute about a genuine issue of material fact
occurs if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S. at 248;
see also R.B. Ventures, Ltd, v. Shane, 112 F.3d 54, 57 (2d Cir.
II. Plaintiffs Have Complied Sufficiently with Local
Rule 56.1 and with Fed.R.Civ.P. 56
NBPME argues that plaintiffs' motion should be denied because it does
not comply with Local Rule 56.1. Plaintiffs failed to serve "a separate,
short and concise statement of material facts as to which the moving
party contends there is no genuine issue to be tried" in making their
motion for partial summary judgment, as called for under the Local Rules
of this District, instead providing only an attorney's affidavit in
support of their motion. Local Rules of the United States District Courts
for the Southern and Eastern Districts of New York, 56.1(a).*fn2 A moving party's
failure to submit a Local Rule 56.1 statement "may constitute grounds for
denial of the motion." Id., 56.1(a). On reply, plaintiffs
attempted to amend their oversight by submitting a purported Local
Rule 56.1 statement. This statement did not, however, follow each assertion of
material fact with a "citation to evidence which would be admissible, set
forth as required by Federal Rule of Civil Procedure 56(e)," as mandated
by Local Rule 56.1. Id., 56.1(d).
When a moving party fails to file a statement as required under Local
Rule 56.1, it is within the discretion of the court to overlook that
failure or to deny the motion. See United States v. Abady, No.
03 Civ. 1683 (SHS), 2004 WL 444081, at *2 (S.D.N.Y. Mar. 11, 2004)
(collecting cases); see also Holtz v. Rockefeller & Co.,
Inc., 258 F.3d 62, 73 (2d Cir. 2001) ("A district court has broad
discretion to determine whether to overlook a party's failure to comply
with local court rules."). Plaintiffs' motion will not be denied simply
for failure to file a Local Rule 56.1 statement.
NBPME further argues that plaintiffs' motion should be denied because
the attorney affidavit submitted in support of the motion does not comply
with Fed.R.Civ.P. 56. Specifically, NBPME contends that the attorney
affidavit submitted by plaintiffs contains factual statements of which the author, Warren Redlich
("Redlich"), has no personal knowledge, including statements regarding
the basis for NBPME's decision to invalidate scores on the July 2002 Exam
and what evidence NBPME did or did not rely on in reaching its decision;
when e-mails containing content of the July 2002 Exam were sent; and a
description of testimony provided by NBPME board members in other
proceedings.*fn3 According to NBPME, Redlich's affidavit also contains
improper legal conclusions and argument, including statements that NBPME
breached its obligation to carry out its contractual duties in good
faith, that NBPME breached the parties' contract, and that NBPME is
required to conduct hearings for the plaintiffs as a result of the
contract and of the holding in Doe I.
A court may "strike portions of an affidavit that are not based upon
the affiant's personal knowledge, contain inadmissible hearsay or make
generalized and conclusory statements." Hollander v. American
Cvanamid Co., 172 F.3d 192, 198 (2d Cir. 1999). Alternatively, a
court may, in considering a motion for summary judgment, simply decline
to consider those aspects of a supporting affidavit that do not appear to
be based on personal knowledge or are otherwise inadmissible. See
United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk, Inc., 44 F.3d 1082, 1084
(2d Cir. 1995); Gatling v. Atlantic Richfield Co.,
577 F.2d 185, 188 (2d Cir. 1978); Union Ins. Soc'y of Canton, Ltd,
v. William Gluckin & Co., 353 F.2d 946, 952 (2d Cir. 1965)
("Conclusory statements and statements not made on personal knowledge do
not comply with the requirements of Fed.R.Civ.P. 56(e) and,
therefore, may not be considered."). The latter alternative will be
followed here, and only those aspects of Redlich's affidavit that appear
to be based on personal knowledge will be considered, in conjunction with
the underlying record,*fn4 in evaluating plaintiffs' motion for partial
"[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a
genuine issue of material fact." Celotex Corp., 477 U.S. at 323
(internal quotation marks omitted); see also Rodriguez, 72 F.3d
at 1060-61. Plaintiffs have expressly incorporated by reference all
papers filed by all parties on the initial application for a preliminary
injunction. Thus, despite the procedural irregularities that mar plaintiffs' motion,
plaintiffs are deemed to have sufficiently informed the Court of the
basis for their motion.
III. NBPME Has Breached the Contract with
"To succeed in a breach of contract claim, four elements must be
satisfied: the making of a contract, performance of the contract by the
plaintiff, breach of the contract by the defendant, and damages suffered
by the plaintiff." Coastal Aviation, Inc. v. Commander Aircraft
Co., 937 F. Supp. 1051, 1060 (S.D.N.Y. 1996).
It is well settled that "[t]he primary objective in contract
interpretation is to give effect to the intent of the contracting parties
as revealed by the language they chose to use." Savers v. Rochester
Tel. Corp. Supplemental Mgmt. Pension Plan, 7 F.3d 1091, 1094 (2d
Cir. 1993) (internal quotation marks and citation omitted). Where the
language of an agreement is unambiguous, courts must enforce the plain
language of the agreement. See, e.g., Seabury
Constr. Corp. v. Jeffrey Chain Corp., 289 F.3d 63, 68 (2d Cir.
2002). Contract language is not ambiguous "if it has a definite and
precise meaning, unattended by danger of misconception in the purport of
the [contract] itself, and concerning which there is no reasonable basis
for a difference of opinion." Hugo Boss Fashions, Inc. v. Federal
Ins. Co., 252 F.3d 608, 617 (2d Cir. 2001) (internal quotation marks
and citations omitted). Unambiguous contract language may not be
rendered ambiguous simply by virtue of "competing interpretations of it
urged in litigation." Photopaint Technologies, LLC v. Smartlens
Corp., 335 F.3d 152, 160 (2d Cir. 2003) (citing Hugo Boss
Fashions, 252 F.3d at 616 (citing Seiden Assocs., Inc. v. ANC
Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992))). Determining
whether the language of a contract is ambiguous is a question of law to
be decided by the court. See, e.g., Lucente v.
Int'l Bus. Machs. Corp., 310 F.3d 243, 257 (2d Cir. 2002).
"Summary judgment is only proper in contract disputes if the language
of the contract is wholly unambiguous." Mellon Bank, N.A. v. United
Bank Corp. of New York, 31 F.3d 113, 115 (2d Cir. 1994) (internal
quotation marks and citation omitted); see also Photopaint
Technologies, 335 F.3d at 160; Lucente, 310 F.3d at 257.
When the language of a contract is susceptible to conflicting, reasonable
interpretations, the contract is deemed ambiguous and its interpretation
becomes a question of fact, rendering summary judgment inappropriate,
provided there is also relevant extrinsic evidence of the parties' actual
intent. See, e.g., Mellon Bank, 31 F.3d at 116;
Savers, 7 F.3d at 1094-95. Absent a showing of relevant
extrinsic evidence of intent, however, ambiguity alone "presents not an
issue of fact, but an issue of law for the court to rule on."
Williams & Sons Erectors, Inc. v. South Carolina Steel
Corp., 983 F.2d 1176, 1184 (2d Cir. 1993); see also Mellon
Bank, 31 F.3d at 116. Neither side disputes the existence of an agreement between each
plaintiff and NBPME, formed when each plaintiff accepted the standardized
form agreement set forth in the Bulletin and thereby registered for the
July 2002 Exam. Nor is there any argument made that plaintiffs have
failed to perform under the agreement.*fn5 What is at issue is whether,
by refusing to accept plaintiffs' request for hearings to appeal the
invalidation, NBPME breached the appeal procedure set forth in the
Bulletin, and thereby the contract itself.*fn6
The contract at issue here was reviewed in Doe I and it was
concluded that the contract "entitles students to a hearing before their
test scores are invalidated." Doe I, at *5. Based on the
analysis set forth in Doe I, plaintiffs argue that it is the
law of the case that the Bulletin requires NBPME to conduct hearings.
NBPME contends that the conclusions reached in Doe I concerning the applicability of the appeal procedure to plaintiffs'
situation do not constitute a conclusive and final determination.
Courts may depart from the law of the case "and reconsider their own
decisions for cogent and compelling reasons if those decisions have not
been ruled on by the appellate court." United States v.
Quintieri, 306 F.3d 1217, 1230 (2d Cir. 2002) (citing DiLaura
v. Power Auth., 982 F.2d 73, 77 (2d Cir. 1992) (citations omitted));
North River Ins. Co. v. Philadelphia Reinsurance
Corp., 63 F.3d 160, 165 (2d Cir. 1995) (noting that, while a "court
sometimes may review an earlier ruling, [n]evertheless, because there is
a strong policy favoring finality the court exercises its underlying
power to review earlier rulings sparingly") (internal quotation marks and
citations omitted). "Application of the `law of the case' doctrine is
`discretionary and does not limit a court's power to reconsider its own
decisions prior to final judgment.'" Sagendorf-Teal v. County of
Rensselaer, 100 F.3d 270, 277 (2d Cir. 1996) (quoting
DiLaura, 982 F.2d at 76).
Therefore, the conclusions reached in Doe I regarding the
merits of plaintiffs' claims are not necessarily controlling. Moreover,
as the Second Circuit has noted:
A preliminary determination of likelihood of
success on the merits in a ruling on a motion for
preliminary injunction is ordinarily tentative,
pending a trial or motion for summary
judgment. . . . It would therefore be anomalous at
least in most cases, and here, to regard the
initial ruling as foreclosing the subsequent, more thorough consideration of the merits that the
preliminary injunction expressly envisions.
Goodheart Clothing Co., Inc. v. Laura Goodman Enterprises,
Inc., 962 F.2d 268
, 274 (2d Cir. 1992) (internal citation omitted);
see also Commodity Futures Trading Comm'n v. Standard Forex,
Inc., No. 93 Civ. 88 (CPS), 1996 WL 435440, at *8 (E.D.N.Y. July 25,
According to NBPME, the Bulletin's appeal procedure is inapplicable to
plaintiffs, since the appeal procedure is only relevant when there have
been allegations of individual misconduct in connection with an
examination and does not apply when candidates' scores have been
invalidated in a wholesale manner. NBPME's argument was deemed flawed in
Doe I and is similarly unavailing here, because the plain
language of the appeal procedure set forth in the Bulletin is not so
limited in its application. The opening clause of the appeal procedure
provision addresses any examination candidate whose "scores are withheld
or canceled" (Bulletin at 8), and it is undisputed here that plaintiffs
have had their scores "withheld or canceled."*fn7 The opening clause,
which contains broad and undifferentiating language, is notably devoid of
any indication that the grounds on which the scores are withheld or
canceled may be determinative as to whether the appeal procedure applies
to a given examination candidate. In sum, this portion of the appeal procedure, which governs who may seek appeal hearings,
provides no basis for NBPME's interpretation.
That the "purpose of the hearing" stated in the second clause of the
appeal procedure is focused on determining whether "the candidate acted
improperly" does not alter this conclusion or otherwise express a
limitation as to which examination candidates may seek hearings
nor has NBPME suggested it could be fairly read to do so. Indeed, a
determination as to whether a particular candidate acted improperly may
be of great personal and professional significance to any
examination candidate and even, if not especially, to those candidates
whose scores were invalidated on a group-wide basis and who may suffer
from the taint of impropriety as a result. Moreover, as stated earlier:
It would make no sense for NBPME to invalidate the
scores of candidates A and B, but only provide
candidate A with a hearing since only this
candidate was accused of misconduct. Such an
interpretation would be arbitrary and
irrational . . .[and] the "Court will not
interfere with [the] discretionary determination
[of a testing agency] unless it is
performed arbitrarily and irrationally."
Doe I, at *5 (quoting Dalton v. Educ. Testing
Serv., 87 N.Y.2d 384, 392, 639 N.Y.S.2d 977, 663 N.E.2d 289 (1995))
NBPME urges that its own interpretation of the appeal procedure set
forth in the Bulletin is reasonable, "given the purpose of the Part I
examination and the irrefutable evidence of misconduct which was presented to NBPME and upon which its decision
to invalidate the scores of the NYCPM students was based." (NBPME Opp.
Mem. at 11.) NBPME has failed to point to anything in the language of the
appeal procedure provision of the Bulletin to support NBPME's
interpretation of limited applicability, instead insisting that it simply
"would make no sense for individual hearings to be conducted in these
types of situations. . . ." (NBPME Opp. Mem. at 11.) However, the plain
language of the appeal procedure provision permits just that, by allowing
any candidate whose scores are withheld or canceled to request a hearing,
without regard to the reasons for which the candidate's scores were
withheld or canceled. Thus, by refusing to provide plaintiffs with
hearings on the grounds that the appeal procedure does not apply to
plaintiffs, NBPME breached its agreement with each plaintiff.
As the ambit of the appeal procedure has not been found to be
ambiguous, the evidence offered by NBPME in support of its interpretation
of limited availability need not be evaluated. See, e.g.,
International Multifoods Corp. v. Commercial Union Ins. Co.,
309 F.3d 76, 83 (2d Cir. 2002) (explaining that "`[i]f the court finds
that the contract is not ambiguous it should assign the plain and
ordinary meaning to each term and interpret the contract without the aid
of extrinsic evidence' and it may then award summary judgment") (quoting
Alexander & Alexander Servs., Inc. v. These Certain Underwriters
at Lloyd's, London, 136 F.3d 82, 86 (2d Cir. 1998)). Even if the
appeal procedure had been deemed ambiguous with regard to its applicability, however, NBPME has not
pointed to any extrinsic evidence that would be relevant to a
determination of the parties `intent such as would preclude a grant of
summary judgment to plaintiffs. See Compaqnie Financiere
de GIG et de 1'Union Europeenne v. Merrill Lynch, Pierce, Fenner &
Smith Inc., 232 F.3d 153, 158 (2d Cir. 2000) ("A court may also
grant summary judgment regarding the interpretation of ambiguous language
if the non-moving party fails to point to any relevant extrinsic evidence
supporting that party's interpretation of the language."); Revson v.
Cingue & Cinque, P.C., 221 F.3d 59, 66 (2d Cir. 2000);
cf. Shepley v. New Coleman Holdings Inc.,
174 F.3d 65, 72 n.5 (2d Cir. 1999) (concluding that summary judgment may be
granted "when the language is ambiguous and there is relevant extrinsic
evidence, but the extrinsic evidence creates no genuine issue of material
fact and permits interpretation of the agreement as a matter of law")
(internal quotation marks and citation omitted).*fn8 Even assuming, arquendo, that the Bulletin did not require
NBPME to provide a hearing to every examination candidate who submitted a
request pursuant to the Bulletin's appeal procedure,*fn9 NBPME's
discretionary decision to refuse plaintiffs' requests on the grounds that
the appeal procedure did not apply to them would still represent a breach
of its contract with plaintiffs.
In keeping with the leading decision from the New York Court of Appeals
on the educational testing contract issues raised here, "[t]his Court
will not interfere with [a] discretionary determination unless it is
performed arbitrarily or irrationally." Dalton, 87 N.Y.2d at
392. Nonetheless, where a test-provider such as NBPME "refuses to
exercise its discretion in the first instance by declining even to
consider relevant material submitted by the test-taker, the legal
question is whether this refusal breached an express or implied term of
the contract, not whether it was arbitrary or irrational." Id.
"Implicit in all contracts is a covenant of good faith and fair dealing
in the course of contract performance," id. at 389, and NBPME
was thus obligated to perform under the Bulletin in good faith. Therefore, even if the Bulletin
did not require NBPME to provide hearings, by declining plaintiffs'
requests on the grounds that the appeal procedure applies only where a
candidate's score is withheld or canceled on an individual basis,
contrary to the language of the appeal procedure itself, NBPME would have
breached the covenant of good faith and fair dealing, thereby breaching
the contract itself.
IV. Plaintiffs Are Entitled to Specific
Plaintiffs urge that the proper remedy for NBPME's breach would be to
order NBPME either to validate plaintiffs' scores or to provide
plaintiffs with hearings according to standards prescribed by the Court.
[w]hile courts as a matter of policy are reluctant
to intrude upon academic discretion in educational
matters, they stand ready as a matter of law and
equity to enforce contract rights. Where a
contract is breached, moreover, and the injured
party is entitled to specific performance, the
remedy must be a real one, not an exercise in
futility. Dalton, 87 N.Y.2d at 394.*fn10 However, it is also true
that, so long as the test-provider
fulfills its contractual obligation to consider
relevant material provided by the test-taker and
otherwise acts in good faith, the testing service
not the courts must be the final
arbiter of both the appropriate weight to accord
that material and the validity of the test score.
This Court will not interfere with that
discretionary determination unless it is performed
arbitrarily or irrationally.
Id. at 392. On these grounds, and in light of the policy
concerns addressed in Dalton, see id. at 394, plaintiffs are
entitled to relief that comports with NBPME's contractual promise: the
good faith consideration of their requests for a hearing.
NBPME has opined that "having hearings in this case would not make any
difference in the outcome, and would be a fruitless exercise, because
there is nothing any of the plaintiffs can say or present to refute the
evidence that the July 2002 [Exam] was compromised by a breach in the
security of the test content. . . ." (NBPME Opp. Mem. at 2.) Such
statements raise concern, but they do not provide a sufficient basis for
forestalling an order of specific performance, whatever import these statements may have at
a later time, should NBPME fail to perform its obligation in good
Plaintiffs' motion for partial summary judgment is thereby granted.
Each plaintiff, upon a showing that he or she has previously submitted a
timely request for an appeal hearing with regard to his or her score on
the July 2002 Exam, may submit to NBPME within 60 days of entry of this
opinion and order a renewed request for a hearing. NBPME shall provide a
hearing to each such plaintiff, to be conducted in accordance with the
terms of the Bulletin and NBPME's obligation to act in good faith.
It is so ordered.