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Tulp v. Educational Commission for Foreign Medical Graduates

United States District Court, E.D. Pennsylvania

June 25, 2019

DR. ORIEN L. TULP, Plaintiff,



         This 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.


         Summary 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).

         The 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).

         In 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.

         Lastly, 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).


         A. ECFMG's Policies & Procedures

         ECFMG 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.

         ECFMG 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 certification.

         To 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 by ECFMG.”

         The 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 “Credentials Committee].
• [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 Irregular Behavior.
• The individual will be given an opportunity to provide written explanation and to present other relevant information.
• 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 ...

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