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DOE v. NATIONAL BOARD OF PODIATRIC MEDICAL EXAMINERS

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

OPINION

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.

Prior Proceedings

  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 below.

  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 determination.

  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 Board.
(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 ...


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