United States District Court, E.D. Pennsylvania
DR. ORIEN L. TULP, Plaintiff,
EDUCATIONAL COMMISSION FOR FOREIGN MEDICAL GRADUATES AND DR. WILLIAM W. PINSKY, Defendants.
case is, in effect, Plaintiff Orien Tulp's challenge to
the disciplinary action taken by Defendant Education
Commission for Foreign Medical Graduates
(“ECFMG”) against Plaintiff for providing false
information about the branch campuses of an overseas medical
school. The Court previously dismissed Plaintiff's
various constitutional and common law claims, with the sole
exception of a common law due process claim. See Tulp v.
Educ. Comm'n for Foreign Med. Graduates, 2019 WL
1382725, at *1 (E.D. Pa. Mar. 26, 2019). ECFMG now moves for
summary judgment on this last remaining claim. For the
reasons that follow, ECFMG's motion will be granted.
judgment must be granted to a moving party if “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); see also Alabama v. North Carolina, 560 U.S.
330, 344 (2010). A genuine dispute “exists if the
evidence is such that a reasonable jury could return a
verdict for the non-moving party.” U.S. ex rel.
Greenfield v. Medco Health Solutions, Inc., 880 F.3d 89,
93 (3d Cir. 2018).
party opposing the motion for summary judgment must “go
beyond the pleadings, ” Celotex Corp. v.
Catrett, 477 U.S. 317, 324 (1986), and demonstrate that
“a fact . . . is genuinely disputed” by
“citing to particular parts of materials in the record,
” Fed.R.Civ.P. 56(c); Doe v. Abington Friends
Sch., 480 F.3d 252, 256 (3d Cir. 2007) (“The
non-moving party may not merely deny the allegations in the
moving party's pleadings; instead he must show where in
the record there exists a genuine dispute over a material
fact.”). When the non-movant “fails to properly
address [the movant's] assertion of fact . . . the court
may . . . consider the fact undisputed for purposes of the
motion, ” and “grant summary judgment if the
motion and supporting materials-including the facts
considered undisputed-show that the movant is entitled to
it.” Fed.R.Civ.P. 56(e)(2); see, e.g.,
Payne v. City of Philadelphia, 2016 WL 1298951, at
*2 (E.D. Pa. Apr. 4, 2016).
accordance with this Court's policies and procedures,
ECFMG submitted a statement of material facts along with its
summary judgment motion, supported by citations to the
record. Plaintiff's response neither meaningfully
addressed ECFMG's assertions of fact nor demonstrated
that any of those assertions were genuinely disputed.
Instead, Plaintiff recited the allegations contained in the
Complaint or else produced conclusory assertions without
citation to the record. Accordingly, the Court will consider
ECFMG's account of the facts undisputed for purpose of
resolving this motion.
where, as here, a federal court is interpreting Pennsylvania
law, the federal court must follow the Pennsylvania Supreme
Court. In re Energy Future Holdings Corp., 842 F.3d
247, 253-54 (3d Cir. 2016). If the law is unclear and there
is no controlling precedent issued by Pennsylvania's
highest court, a federal court must “predict” how
it would rule, giving “due regard, but not conclusive
effect, to the decisional law of lower state courts.”
Nationwide Mut. Ins. Co. v. Buffetta, 230 F.3d 634,
637 (3d Cir. 2000).
FACTS & PROCEDURAL HISTORY
ECFMG's Policies & Procedures
is a private, non-profit organization based in Philadelphia
that certifies international medical graduates
(“IMGs”) so that those students can pursue
post-graduate medical training in the United States.
Specifically, ECFMG: (1) certifies the readiness of IMGs
through an evaluation of their qualifications, (2) verifies
IMGs' education credentials, and (3) provides that
information to graduate medical programs and other health
care providers. As part of the verification process, ECFMG
collects certain documentation from IMGs, including
documentation confirming that graduates attended a recognized
international medical school.
defines an international medical school as “an
education facility located in a country outside of the United
States and Canada with its primary campuses and main
operations located in that country.” Where an
international medical school operates branch campuses, ECFMG
requires confirmation that “the branch campus is
authorized to operate as a medical school in the branch
campus country” and that the international medical
school “awards degrees that meet the medical education
eligibility requirements for licensure to practice medicine
in the branch campus country.” Only graduates from a
bona fide international medical school can obtain ECFMG
ensure the integrity of its certification process, ECFMG
maintains policies to detect and snuff out “irregular
behavior.” The policies are set forth in ECFMG's
publicly available Policies and Procedures Regarding
Irregular Behavior, which define “irregular
behavior” as “all actions or attempted actions on
the part of applicants, examinees, potential applicants,
others when solicited by an applicant and/or examinee, or any
other person that would or could subvert the examination,
certification or other processes, programs or services of
ECFMG[.]” “Examples of irregular behavior include
. . . submission of any falsified or altered document to
ECFMG, whether submitted by the individual or by a third
party, such as a medical school, on behalf of the individual,
” and “falsification of information on
applications, submissions, or other materials to
ECFMG.” The Policies and Procures make clear that
“such actions or attempted actions are considered
irregular behavior, regardless of when the irregular behavior
occurs, and regardless of whether the individual is certified
Policies and Procedures also set out a specific process by
which ECFMG investigates suspected irregular behavior,
determines whether an individual engaged in irregular
behavior, and takes remedial action if a finding of irregular
behavior is made:
• After receipt of a report or other information
suggesting irregular behavior on the part of an individual,
ECFMG staff will review the information and will assess
whether there is sufficient evidence of irregular behavior.
When indicated and feasible, staff will conduct a follow-up
investigation to gather additional information.
• If ECFMG staff finds that there exists a reasonable
basis to conclude that an individual may have engaged in
irregular behavior, the matter will be referred to the
Medical Education Credentials Committee [hereinafter
• [T]he individual will be advised in writing of the
nature of the alleged irregular behavior and will be provided
with a copy of the Policies and Procedures Regarding
• The individual will be given an opportunity to provide
written explanation and to present other relevant
• The individual may also request the opportunity to
appear personally before the [Credentials Committee], and may
be represented by legal counsel, if the individual so wishes.
• All pertinent information regarding the irregular
behavior, including any explanation or other information that
the individual may provide, will be provided to the
[Credentials Committee]. The [Credentials Committee], based
on the information available to it, will determine whether
the preponderance of the evidence indicates that the
individual engaged in irregular behavior.
• If the [Credentials Committee] determines that the
individual engaged in irregular behavior, the [Credentials
Committee] will determine what action(s) will be taken as a
result of the irregular behavior. ECFMG will notify the
individual whether the [Credentials Committee] determined the
individual engaged in irregular behavior and of any action(s)
taken pursuant thereto.
• The [Credentials Committee]'s determination of
irregular behavior and any action(s) taken pursuant thereto .
. . may be appealed to the Review Committee for Appeals if
the individual has a reasonable basis to believe the
[Credentials Committee] did not act in compliance with the
Medical Education Credentials Committee Policies and
Procedures or that the ...