Opinion
03 Civ. 4034 (RWS)
June 19, 2003
WARREN REDLICH, ESQ., Albany, NY., Attorney for Plaintiffs.
ANDREW I. HAMELSKY, ESQ., CHARLES S. MARION, ESQ., WHITE AND WILLIAMS New York, NY., Attorneys for Defendants.
BRAFF, HARRIS SUKONECK, Attorneys for Defendant Chauncey Group Intl. New York, NY, By: KEITH HARRIS, ESQ. Of Council.
OPINION
Plaintiffs podiatry students at the New York College of Podiatric Medicine ("NYCPM") move for a preliminary injunction compelling defendants National Board of Podiatric Medical Examiners ("NBPME") and Chauncey Group International, Ltd. ("Chauncey") to release the plaintiffs' scores from the July 2002 Part I NBPME Examination and certify that the scores are valid. For the reasons set forth below, this motion is denied.
Prior Proceedings
This action was commenced on June 3, 2003 when plaintiffs sought and obtained an Order to Show Cause for a Preliminary Injunction compelling defendants to release plaintiffs' scores and certify their validity.
The instant motion was marked fully submitted on June 11, 2003.
The Parties
Plaintiffs are students of NYCPM and citizens of various states and counties. At the time the complaint was drafted, 26 students signed on as plaintiffs, and an estimated 60 students would eventually sign on as plaintiffs. (Compl. ¶ 1.)
Defendant NBPME is a corporation incorporated under the laws of the State of New Jersey with its principal place of business in a state other than the State of New York. Its main office is located in Bellefonte, Pennsylvania. Defendant Gibey is the Executive Director of NBPME and, on information and belief, resides in the State of Pennsylvania. The remaining individual defendants are the professional board members and officers of NBPME. On information and belief, they reside in several states, including Pennsylvania, Florida, Illinois, Washington, Michigan, Virginia, North Dakota, and South Carolina. Defendant Chauncey, a subsidiary of Educational Testing Service located in Princeton, New Jersey, administers exams to podiatry students and acted as NBPME's agent at various times throughout the alleged events. (Compl. ¶¶ 2-7.)
The Complaint
According to the complaint, the plaintiffs took the NBPME Part I Examination in July of 2002 (the "July Exam"). The examination was administered by computer during the four-day testing period of July 9-12. (Compl. ¶ 10-11.) All of the plaintiffs passed the July Exam. (Compl. ¶ 12.)
On or about August 13, 2002, defendant NBPME notified the plaintiffs that certification of the results of the July Exam would be delayed due to a testing irregularity. (Compl. ¶ 14.) Then, on October 21, 2002, NBPME declared the July Exam invalid and decided to withhold the score results. (Compl. ¶ 18.) The individual defendants participated in this decision. (Compl. ¶ 19.)
NBPME stated on its website that it had "documented evidence that the test content was accessible to students prior to the July 2002 test administration." (Compl. ¶ 23.) It stated that students had access to "documents containing secure test questions." (Compl. ¶ 24.) NBPME then mailed letters to hospitals and other recipients, indicating its invalidation of plaintiffs' July Exam and containing statements similar to those on the website. (Compl. ¶ 25.) The individual defendants directed NBPME to make these statements. (Compl. ¶ 26.) Plaintiffs claim that the defendants knew or should have known that such statements would be damaging to plaintiffs' reputations. (Compl. ¶ 27.)
Pursuant to the NBPME "Bulletin of Information," the plaintiffs appealed NBPME's decision. (Compl. ¶ 28.) On or about November 21, 2002, NBPME sent letters to the plaintiffs indicating that the appeal procedure was inapplicable. (Compl. ¶ 29.)
Plaintiffs claim that defendants' actions adversely affected them with regard to completing their graduation requirements; participating in externships, internships, and residency programs; and obtaining a license for the practice of podiatric medicine. (Compl. ¶ 33.) The process by which podiatry students enter residencies involves the Centralized Application Service for Podiatric Residencies (CASPR), and the deadline for submission of materials is Jun 13, 2003 (Pls.' Mem. at 3.)
Plaintiffs were required to take an additional "pencil and paper" exam in January of 2003 (the "January Exam"). (Compl. ¶ 37.) The January Exam was administered while plaintiffs were taking a full load of classes and participating in internship programs. (Pls.' Mem. at 2.) Most of the plaintiffs passed the January Exam, but five of the plaintiffs did not. (Compl. ¶ 39.)
Plaintiffs allege breach of contract and defamation and request damages and the following equitable relief:
A. The NBPME and Chauncey be ordered to release and certify as valid and final the results of the July Exam.
B. That NBME and Chauncey be enjoined from invalidating plaintiffs' test results from the July Exam.
C. That NBPME and Chauncey provide each individual plaintiff a prompt appeal hearing regarding their invalidation of the July Exam results.
D. That NBPME be ordered to publish a retraction of its defamatory statements on its website.
E. That NBPME be ordered to send letters to the recipients of its defamatory letters retracting the defamatory statements.
F. Declaratory Judgment that the July Exam results were valid.
(Compl. at 8.)
Standard
A party seeking a preliminary injunction must show:
(1) irreparable harm in the absence of the injunction and
(2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor.
Random House, Inc. v. Rosetta Books LLC, 283 F.3d 490, 491 (2d Cir. 2002) (citing Zervos v. Verizon New York, Inc., 252 F.3d 163, 172 (2d Cir. 2001); ABKCO Music, Inc. v. Stellar Records, Inc., 96 F.3d 60, 64 (2d Cir. 1996)).
Furthermore, a higher standard is employed where:
(i) an injunction will alter, rather than maintain, the status quo, or (ii) an injunction will provide the movant with substantially all the relief sought and that relief cannot be undone even if the defendant prevails at trial on the merits.
Tom Doherty Assocs., Inc. v. Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995). Thus, a higher standard is applicable here since plaintiffs seek to alter the status quo with a mandatory rather than prohibitory inunction. Plaintiffs seek a Court order, mandating defendants to release their test scores and declare their validity. As explained in the Tom Doherty case, "The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. A mandatory injunction, in contrast, is said to alter the status quo by commanding some positive act." Id. at 34.
Moreover, plaintiffs' requested preliminary injunction would grant them full relief, and it could not be undone. It is true, as suggested by plaintiffs, that defendants can later deny the validity of the scores. However, this act would harm the credibility and reliability of defendants' services. Furthermore, plaintiffs' entire argument is premised on the immediacy of reliance on these scores by externship, internship, and residency programs.
The applicable higher standard requires a "substantial, or clear showing of, likelihood of success to obtain preliminary relief," Tom Doherty, 60 F.3d at 35, or that "extreme or very serious damage will result from a denial of preliminary relief," id. at 34.
Irreparable Harm
"Perhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered." Citibank, N.A. v. City Trust, 756 F.2d 273, 275 (2d Cir. 1985). "Preliminary injunctions are generally granted under the theory that there is an urgent need for speedy action to protect the plaintiff's rights. Delay in seeking enforcement of those rights, however, tends to indicate at least a reduced need for such drastic, speedy action." Id. at 276 (holding that Citibank's ten-week delay from the date of a discovered trademark or trade name infringement to the commencement of a lawsuit undermined their claim of irreparable harm). See also Tom Doherty, 60 F.3d at 39 ("A district court should generally consider delay in assessing irreparable harm."); Majorica, S.A. v. R.H. Macy Co., Inc., 762 F.2d 7, 8 (2d Cir. 1985) (lack of diligence goes to the issue of irreparable harm and may preclude granting preliminary injunctive relief).
Here, plaintiffs' considerable delay in applying for injunctive relief undercuts any sense of urgency they allege. Plaintiffs received notice of the invalidation of their test results on October 21, 2002, and NBPME informed plaintiffs that it was refusing to consider appeals on November 21, 2002. Plaintiffs filed their motion on June 3, 2003 — almost seven months later. Even if, as alleged, plaintiffs moved promptly in the month of May when they decided to commence proceedings, plaintiffs still waited several months before they took any action. The urgency of the June 13 deadline they point to is thus belied by their long inaction.
Success on the Merits
Requested Injunctive Relief
Plaintiffs fail to make "a clear showing" that they are "entitled to the relief requested." Tom Doherty, 60 F.3d at 34. In Dalton v. Educ. Testing Serv., 87 N.Y.2d 384 (1995) and In the Matter of K.D. v. Educ. Testing Serv., 386 N.Y.S.2d 747 (1976), the controlling decisions in this case, the New York courts set forth the deference paid to the judgments of testing agencies. They concluded that a "reluctance to interfere with the exercise of academic discretion is motivated by sound considerations of public policy." Dalton, 87 N.Y.2d at 393.
In the Dalton case, Brian Dalton, an SAT candidate, took the test on two separate occasions. On his second attempt, Mr. Dalton's test scores increased 400 points. Such an enormous increase in the candidate's performance led ETS to question the validity of the plaintiff's second score. ETS notified Mr. Dalton it was questioning its test results and offered him, among other things, an opportunity to present additional information to assist ETS in resolving its questions about the validity of the second score. ETS subsequently failed to consider the information that he submitted. The court concluded that this lack of consideration constituted a breach of ETS' contract with Mr. Dalton, and Mr. Dalton was entitled to specific performance. However, the Court specifically refused to compel ETS to validate test results which it questioned. The court explained:
[P]olicy concerns militate against directing ETS to release a questioned score. When a standardized testing service reports a score, it certifies to the world that the test taker possesses the requisite knowledge and skills to achieve the particular score. Like academic credentials, if courts would require the testing services to release questioned scores, the value of these credentials from the point of view of society would be seriously undermined.
Dalton, 87 N.Y.2d at 394. In determining the validity of a test score, the court thus declined to exercise its judgment in lieu of the testing firm's.
In the K.D. matter, an LSAT candidate scored 238 points higher on his second attempt taking the LSAT than his first. ETS investigated the candidate's scores and refused to validate them. The Court held that a contractual clause reserving to ETS "the right to cancel plaintiff's test score if there is a question about its validity, and requiring him to take a retest in such event" is not "so unfair and unreasonable." K.D., 386 N.Y.S.2d at 752.
The Ohio litigation, related to the invalidation of the July Exam, differs from the present case because in Ohio there was no evidence of wrongdoing. There were no e-mails containing test content, as defendants allege were sent and received by NYCPM students during the administration of the July Exam. Rather, concern centered around a Sample Board Question document, a collection of 1,078 sample test questions available to Ohio students through the school's library. The question was how this document was created and whether it was a violation of defendants' policies. The court refused to grant a preliminary injunction, and trial commenced on February 18, 2003. The court excluded evidence of Defendants' nationwide investigations regarding the July Exam as hearsay unduly prejudicial to the Ohio plaintiffs against whom there was no evidence of misconduct. On April 2, the jury returned a verdict in favor of the student plaintiffs, determining that defendants both breached their contract with the Ohio students and violated Ohio's deceptive trade practices act. On this basis, on April 7, the court ordered that defendants were permanently enjoined from invalidating any passing score of any plaintiff predicated upon Sample Board Questions Document. Thus, even in the Ohio case, the court did not grant the relief requested by students in the preliminary injunction stage.
Breach of Contract
Like Dalton and K.D., plaintiffs entered into a contract with NBPME when accepting its standardized form agreement and registering for the July Exam. This contract, 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 candidates that "[a]ny 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. The Bulletin thus provides NBPME with the right to cancel candidates' scores.
As plaintiffs "rely solely on a breach of contract claim regarding preliminary injunction," a discussion of the merits of the defamation claim is unnecessary here. (Pls.' Supp. Mem. at 2.)
However, the Bulletin also provides candidates with an appeal procedure. Provision 1 on page 8 under Appeal Procedure states:
If a candidate's scores are withheld or canceled, that candidate may, within 15 business days of the notification, 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.
Thus, as in Dalton, the contract entitles students to a hearing before their test scores are invalidated.
NBPME, however, argues that this appeal procedure is inapplicable to plaintiffs as it is only relevant upon allegations of individual misconduct. This argument is flawed since the appeal procedure is not limited to candidates accused of misconduct, but rather the clause addresses any candidate whose "scores are withheld or canceled."
Although it is true that the stated purpose of the hearing is focused on finding whether "the candidate acted improperly," the logical implication is that a determination must be made whether a candidate's score is tainted by improper action. 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 as held in Dalton, the "Court will not interfere with [the] discretionary determination [of a testing agency] unless it is performed arbitrarily and irrationally." 87 N.Y.2d at 392 (emphasis added). "Implicit in all contracts is a covenant of good faith and fair dealing," and NBPME is thus under an obligation to perform under its contract in good faith. Id. at 389; see also Dalton v. Educ. Testing Serv., 742 N.Y.S.2d 364 (2d Dep't 2002) (Dalton II) (affirming denial of ETS' motion for summary judgment and holding that ETS had not met its burden of proving that it had considered plaintiff's challenge in good faith). The significant consideration in deciding whether or not to invalidate a test score is thus not whether the individual candidate engaged in misconduct, but whether the candidate's test results are tainted by misconduct. As exemplified by this case, NBPME may have reason to invalidate candidates' test results even when they are innocent.
Furthermore, in K.D., the Court stated that contracts with an academic testing service "would appear to fit the description" of an adhesion contract because "[t]hey are typically standard contracts which are offered by the party with strong bargaining power to the weaker party on a take it or leave it basis." 386 N.Y.S.2d at 751. Since these exams are required by almost all accredited institutions, candidates have no choice but to take them on the terms offered. In such a case, "effort will frequently be made to protect the weaker party from the agreement's harsher terms," and the contract will remain valid as long as it is "not so unfair and unreasonable." Id. at 752.
In this case, defendants themselves have not pursued action against individual wrongdoers and claim to be primarily concerned with "the integrity of test results." (Chauncey Mem. at 7.)
Plaintiffs cite a variety of considerations on why a hearing would be useful in this case. They allege, for instance, that students that took the exam on June 9 would not have had the opportunity to receive the allegedly tainting e-mails. Plaintiffs suggest five questions to consider at a hearing:
1. Did the student have access to "secure test information" before taking the exam?
2. Did the student actually read "secure test information" before taking the exam?
3. How many of these "secure questions" were on that student's actual exam?
4. Did the student pass with a score sufficient to indicate that the "secure questions" did not matter?
5. Did the student improperly communicate secure test content to others?
(Pls.' Supp. Mem. at 12.) Although they do not meet the standard for a preliminary injunction, plaintiffs thus may have cause for relief at a further stage in this proceeding.
Balance of Hardships
Plaintiffs additionally cannot show that "extreme or very serious damage will result from a denial of preliminary relief." Tom Doherty, 60 F.3d at 34.
Defendants mitigated the harms suffered by plaintiffs by offering a specially-scheduled, free of charge retest in January. Although, as plaintiffs claim, this January, "pencil-and-paper" test was not an identical to the July Exam, it provided affected test takers with the opportunity to obtain valid and timely exam scores. All but five students passed this January Exam.
Plaintiffs further claim that even the students that passed the January Exam will face a "form of discrimination." (Pls.' Supp. Mem. at 7.) Their argument is that since defendants refused to release the scores of the July Exam, and some of the students presumably received higher scores on the July Exam than they did on the January retest, these students "will be impaired in obtaining their choice of residencies because residency programs do consider scores. Students with higher scores receive better opportunities than those with lesser scores." Id. Plaintiffs themselves concede that particular test scores are not to be taken into account in comparing students and judging their abilities. The Bulletin warns that test scores are merely "an indication of minimum competence," and are not to be used for "employment selection" or "to compare educational programs." (Bulletin at 9.) But, plaintiffs point out that NBPME, nevertheless, releases individual scores to programs enabling their use. However, such speculative harms do not rise to the level of "extreme or very serious damage." Tom Doherty, 60 F.3d at 34. Plaintiffs are assuming (1) that some test takers scored significantly better on the July exam; (2) that this significant difference was not due to a taint in the July exam; and (3) that this difference will affect students' entry into residency programs, although the programs are explicitly warned against using particular scores in this way.
NBPME further points out that interview for residencies do not take place until January 2004, and applicants have until August 29, 2003 to advise CASPR of programs to which would like to apply. Applicants are permitted to add residency programs until October 15, 2003, and application files are sent to residency programs by CASPR through late November 2003. Therefore, although, not ideal, plaintiffs who have not yet passed the Part I examination will have two more opportunities to take and pass the test before the residency application process concludes.
NBPME also provided a written explanation to the directors of podiatric medical residencies regarding the invalidation decision and requesting that "residency program directors treat those who sat for the Part I test in January, 2003, no differently than those who sat for the July, 2002 Part I examination." Plaintiffs claim that this letter only "demonstrates the negative" and raises concerns as to how residency programs will treat January Exam scores. However, there is no reason to believe that residency programs will not abide by NBPME's request and that they will penalize students even after they received an explanation of the reasons for the July Exam's invalidation. Again, plaintiffs point to merely speculative harms and offer no evidence in their support.
This case is unlike Doe v. NBME, where a test-taker's transcript was flagged because he received extra time to accommodate a disability. 199 F.3d 146 (3d Cir. 1999). Here, defendants did not single out individual students, but rather invalidated the July Exam for all students at NYCPM. Defendants specifically notified residency programs that this invalidation does not reflect on individual students' ability or integrity. Defendants further provided students with the option of obtaining a valid score in January.
Furthermore, if injunctive relief were to be granted in plaintiffs' favor, defendants would suffer harm. As stated, defendants cannot declare the results of the July Exam valid and later "undo" this, advising programs that a mistake was made, without undermining confidence in defendants' work. Chauncey explains that compelling them to declare the validity of test results they find questionable "would undercut the very purpose of Chauncey's work which is to make predictions of competency, acumen and performance based upon its expertise." (Chauncey's Mem. at 19.) There is also a public health consideration in having the testing and licensing process for podiatrists function properly. As the court stated in K.D., a testing service "performs a highly valuable service not only to the law schools but to the public as well. Moreover, the accuracy of its predictions is defendant's sole stock in trade. The less accurate as a forecaster its tests are, the less value they have . . ." 386 N.Y.S.2d at 752. Thus, when unable to vouch for the integrity of test results, a testing service is "within its rights and indeed within its obligations and duties to the (college) and to the public in requesting . . . a reexamination." Id.
Conclusion
The plaintiffs' motion for preliminary injunction is thereby denied.
It is so ordered.