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Bogus v. American Speech & Hearing Association.

decided as amended september 27 1978.: July 19, 1978.

DALE S. BOGUS
v.
AMERICAN SPEECH & HEARING ASSOCIATION.



Before Adams, Van Dusen and Rosenn, Circuit Judges.

Author: Van Dusen

Opinion OF THE COURT

Dale Bogus, a speech pathologist and member of the American Speech and Hearing Association (ASHA), brought suit on April 2, 1974, in the district court challenging ASHA's rule requiring the maintenance of membership in ASHA as a prerequisite to applying for, receiving, and retaining a Certificate of Clinical Competence (CCC) which ASHA issues to qualifying members. Plaintiff's complaint alleges that ASHA's membership prerequisite rule for a CCC constitutes an unlawful tying arrangement in violation of §§ 1 and 2 of the Sherman Act. 15 U.S.C. §§ 1, 2 (1976), and of the common law. The complaint, as amended, requests an injunction under § 16 of the Clayton Act, 15 U.S.C. § 26 (1976), barring ASHA's membership prerequisite rule and requiring ASHA to give appropriate notice of the abolishment of its rule. The complaint also seeks to recover under § 4 of the Clayton Act, 15 U.S.C. § 15 (1976), treble damages in the amount of membership fees and dues paid during the four years preceding the filing of the complaint and reasonable attorney's fees. Finally, the plaintiff sought certification of her action under Rule 23(b)(3) of the Federal Rules of Civil Procedure on behalf of herself and the class of all ASHA members.

The District Court for the Eastern District of Pennsylvania, by order of August 7, 1975 (51a), denied plaintiff's motion for class action certification on the ground that the prerequisites for certification specified in Rule 23(a) (4) and (b)(3) had not been satisfied. See Bogus v. American Speech & Hearing Ass'n, 20 F.R.Serv.2d 859 (E.D.Pa. 1975). Nearly a year later, on June 17, 1976, three audiologists filed a motion to intervene as plaintiffs, intending to ask for reconsideration of the class action request. After discovery, each party filed a motion for summary judgment. By order of March 24, 1977 (209a), the district court denied plaintiff's motion for summary judgment because of the existence of numerous factual disputes in connection with her claim. By memorandum and order dated May 5, 1977 (210-19a), the district court granted summary judgment for the defendant on plaintiff's claims under the federal antitrust laws and dismissed the remaining common law claim for lack of pendent jurisdiction. The district court held, on the basis of the record before it, that plaintiff's employment experience and prospects were such as to deny her standing to seek either damages or an injunction under the antitrust laws. The district court did not formally act on the intervention application.

Mrs. Bogus appeals from each of the aforementioned district court orders, as well as its failure to act on the motion to intervene. We first consider plaintiff's standing to sue under the federal antitrust laws. We address each of the other district court orders in turn.

I.

A.

ASHA is a non-profit professional association of speech pathologists and audiologists*fn1 formed in 1925 and incorporated in 1947. In 1974, when plaintiff's complaint was filed, ASHA boasted membership of over 20,000 professionals (125a). ASHA's members are employed principally in schools, universities, clinics, hospitals, laboratories, and rehabilitation centers. Others pursue private practice. Among other activities, ASHA publishes several journals, accredits college and clinical programs, sponsors education and recruitment programs for its members, represents its membership before legislatures and government agencies, and promulgates a code of professional ethics (111-16a). ASHA's activity which is at the center of this case is the association's professional certification program. ASHA awards its CCC to members who meet specified requirements of academic training, clinical experience and performance on a national examination. Certification may be obtained in either audiology or speech pathology or both fields. While ASHA does not require its members to seek a CCC, its Code of Ethics, § A(1)(c), admonishes that "the Member who is uncertified must not engage in private practice" (101a). Moreover, professionals who engage in clinical work are expected to meet the qualifications of the certification program. Id. § A(1).*fn2

Many employers specify the CCC as a job prerequisite or as a preferred credential.*fn3 The district court, in its opinion granting summary judgment for the defendant, found that "the CCC is a professional necessity in some employment submarkets of the speech pathology profession and that it is a recognized symbol of competence within the profession." Bogus v. American Speech and Hearing Ass'n, Civil No. 74-849, slip op. at 2 (E.D.Pa., May 5, 1977) (211a). This statement fairly assesses the significance of the CCC to the speech pathology profession on the basis of this record.*fn4

ASHA certifies only dues paying members. In fact, ASHA will consider initial applications for a CCC only from members of the association. See "Requirements for the Certificates of Clinical Competence," ASHA brochure effective March 1, 1975, plaintiff's Exhibit P-3 (103-04a). Members may formally apply after completing their required academic training, which includes a prescribed curriculum and a clinical practicum involving supervised clinical experience. In addition to joining ASHA and completing the education requirements, applicants for a CCC must serve a "clinical fellowship year" in their specialty and pass the national examination in that field before finally receiving their certification. Id. Given this application and certification sequence, ASHA encourages prospective speech pathologists to apply for association membership while still in school and prior to their filing of an application for the CCC. "Certification Questions and Answers," ASHA brochure dated January 1973, plaintiff's Exhibit P-16 (136-37a).

Satisfaction of all the professional standards, coupled with membership in ASHA, entitles a speech pathologist to receive a CCC. However, retention of the CCC is dependent on the holder's remaining a dues paying member in good standing of ASHA. Delinquency in paying dues cancels certification and requires the former holder to reapply for a CCC. ASHA By-Laws, 1975, Art. IX, § 2, plaintiff's Exhibit P-1 (98a).

Dale Bogus attended Syracuse University, where she received a B.S. degree in Speech Pathology and Audiology in 1972 and a M.S. degree in Speech Pathology in December 1973. The same month that she earned her Master's degree, she applied for her CCC. In February 1974 she received from ASHA acknowledgment of receipt of her application for a CCC, as well as notice that it would not be processed until she submitted a membership application fee and annual dues. Plaintiff's Exhibit P-19 (142a). Mrs. Bogus paid the required fees and dues,*fn5 and in April 1974 she was informed that ASHA approved her academic course work and supervised clinical practicum and that she had only to pass the national examination and to complete her clinical fellowship year to qualify for a CCC. Plaintiff's Exhibit P-20 (143a). On June 20, 1975, Mrs. Bogus was notified that she had passed the national exam and that her CCC was granted and would remain valid "as long as (she) remain an ASHA member in good standing." Letter from Chairman, Clinical Certification Board of ASHA, to Mrs. Bogus dated June 20, 1975, plaintiff's Exhibit P-21 (144a). Mrs. Bogus has maintained her membership by annually paying her dues, which in 1978 are $95.00. Plaintiff's Exhibit P-147 (167a). Her CCC remains valid.

From July 1973 until August 1975, when she took maternity leave, plaintiff worked part-time as a speech therapist at the Bryn Mawr Hospital Rehabilitation Center in Malvern, Pa. According to her supervisor at the Rehabilitation Center, Mrs. Bogus was not required to have a CCC to work as a part-time speech therapist. Affidavit of Rance McIntyre, P 5, Sept. 25, 1975 (89a). Nevertheless, Mrs. Bogus inquired of the supervisor on accepting the position as to whether she would be able to satisfy the clinical fellowship requirements for her CCC by working at the Rehabilitation Center. Id. P 6.*fn6 While working part-time at the Rehabilitation Center, Mrs. Bogus also began working part-time at the Broomall Nursing Home. However, Mrs. Bogus left the employ of the Home because she was unsupervised while working there and, therefore, could not satisfy the clinical fellowship supervision requirement for her CCC. Deposition of Dale S. Bogus, Oct. 21, 1975, N.T. 12-13.

Mrs. Bogus has not returned to work at the Rehabilitation Center since taking maternity leave in August 1975. As evidence of her future employment plans, Mrs. Bogus filed the following affidavit on July 12, 1976:

"I am the plaintiff in the above-styled action. Since giving birth to a daughter in October of last year, I have devoted all of my time to caring for her and I have not worked in my profession. However, I have never intended to abandon my profession of speech pathology and I have always intended to return to clinical practice. I presently specifically intend to develop a part-time, private practice beginning this fall, and I have so intended for a number of weeks. I hope to see patients referred to me by physicians, hospitals, extended care facilities, or other speech ...


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