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January 29, 1993

MAX C. GREENLEE, JR., M.D., Plaintiff,

The opinion of the court was delivered by: LOUIS F. OBERDORFER


 Plaintiff, Max Greenlee, is a doctor with a medical degree from the State University of New York, Downstate ("SUNY"). Between July 1987 and July 1990, plaintiff was denied a license to practice medicine in the District of Columbia by defendants, the District of Columbia Board of Medicine ("Board") and the Board's individual members. He therefore brings this suit under 42 U.S.C. § 1983 seeking damages for lost wages and injury to his professional development.

 On cross-motions for summary judgment, the parties agree that no material facts are in dispute. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 153, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The case, therefore, is ripe for a decision on the merits. Because plaintiff has failed to state a cause of action under either the equal protection clause or the due process clause of the Fifth and Fourteenth Amendments, the accompanying order denies plaintiff's motion for partial summary judgment and grants defendants' cross-motion for summary judgment.


 The D.C. Board of Medicine was established by the Health Occupations Revision Act, D.C. Code § 2-3301.1 et seq. ("Revision Act"), and operates as an entity within the District of Columbia Department of Consumer and Regulatory Affairs, a department of the executive branch of the Government of the District of Columbia. The Board is responsible for evaluating the qualifications and supervising the examinations of applicants for licensure to practice medicine in the District. D.C. Code § 2-3304.8.

 Under the Revision Act, the Board is allowed to grant licensure on a number of grounds. Where the applicant demonstrates to the Board's satisfaction that she or he is licensed or certified to practice medicine and is in good standing under the laws of another state with requirements which, in the Board's opinion, are substantially similar to those required for licensure in the District, the Board may grant licensure through "endorsement." Alternatively, an applicant may obtain a license by establishing to the Board's satisfaction that she meets the requirements for licensure established in the District, or by passing an examination administered by the Board ("examination"). Finally, the Board may waive the examination requirement if the applicant otherwise is qualified under the D.C. Revision Act and rules. See D.C. Code §§ 2-3305.3, 2-3305.4, 2-3305.7, 2-3305.6, 2-3305.8.

 On July 22, 1987, plaintiff, a licensed doctor in the State of New York and a diplomate of the National Board Examination, applied for a license to practice medicine in the District of Columbia on the basis of endorsement.

 Following an initial review of plaintiff's application, on October 7, 1987, the Board voted preliminarily to deny the license. In October 1987, the Board decided to seek additional information regarding Greenlee's employment history to supplement the application.

 On or about February 10, 1988, the Board issued a Notice of Intent to Deny License ("Notice"). The Notice informed plaintiff of the Board's intent to deny his application, stating plaintiff had failed to satisfy the Board that he was professionally qualified to be issued a license based on endorsement. The Charge and Specifications for the intended denial indicated that plaintiff had failed to complete three previous residency programs. The evaluation from plaintiff's most recent year-long residency at the Interfaith Medical Center described plaintiff's performance as satisfactory only, and indicated that plaintiff had "only an average knowledge of medicine" and had "certain specific deficiencies in that knowledge." Def. Ex. 5.

 On May 12, 1988, the Board conducted a hearing on the stated Charge and Specifications, pursuant to D.C. Code § 2-3305.19(a). At the hearing, plaintiff testified on his own behalf, introduced exhibits into evidence, and examined witnesses whom he had subpoenaed. Although plaintiff properly had requested that the Board subpoena two witnesses regarding his previous employment history, neither was present. Based in part on letters and questionnaires gathered by the Board from plaintiff's previous employers, the following evidence was presented at the hearing regarding plaintiff's education and employment history.

 Plaintiff commenced his undergraduate studies in 1961 at Howard University, withdrew in 1967, was readmitted in 1969, and graduated in 1972. In 1974, he commenced medical school at the State University of New York, Downstate ("SUNY"), a fully accredited school of medicine. While attending medical school, plaintiff received a grade of honors in one course and a grade of satisfactory in all others. Plaintiff testified that after graduating from medical school, he was "'burnt out' and [he] felt that . . . [he] did not have to push as hard from then on." Def. Ex. 4, Transcript of May 12, 1988 Hearing, at 20-21.

 Plaintiff commenced his first residency at Howard University Hospital on June 28, 1979. On December 12, 1979, he was terminated from that residency for "failure to report to duty and inability to perform satisfactorily in the Department of Surgery." Def. Ex. 11, Letter from Dr. La Salle D. Leffall dated December 12, 1979. A subsequent letter by Dr. Clive O. Callendar to the Maryland Board of Medical Examiners stated Greenlee "admitted at the time that he had lost interest and the particular motivation necessary for completion of his internship." Def. Ex. 13. At the May 12 hearing, plaintiff testified that his performance during the first five months of the residency was entirely satisfactory, and the problems that arose were limited to plaintiff's absence from work during the early part of December 1979. Def. Ex. at 34.

 Further information was presented at the hearing concerning plaintiff's second unsuccessfully attempted residency at the Tripler Army Medical Center, Honolulu, Hawaii. Plaintiff commenced that residency in August 1980 and resigned on the advice of his superiors in March 1981. In an August 27, 1987 letter to the Board, Dr. Peter J. Garcia explained that

 Dr. Greenlee was a motivated, honest, conscientious doctor who tried hard but who was limited by an insufficient data base, difficulty synthesizing information and, perhaps, a lack of organization. We felt that the approximately two years he was out of medicine after medical school placed him at a severe disadvantage. He had difficulty from the beginning, and we tried to help bring his work up to acceptable levels, but without consistent success. Max resigned from the internship under honorable conditions in March (on our advice), and was discharged from the Army. While I believe he profited from his time at Tripler, we can give him no credit for academic purposes.

 Def. Ex. 17. Plaintiff conceded that once again he had been "burned out" when he was asked to resign. He testified, however, that his resignation resulted from his refusal to testify, against the Army's request, in a matter of alleged child abuse. Def. Ex. 4 at 9.

 Plaintiff's third unsuccessful residency lasted approximately two weeks, between July 1 and July 16, 1982, at St. Agnes Hospital, Baltimore, Maryland. Plaintiff's performance in this residency was not evaluated, due to its brevity. Plaintiff, however, testified that he "was not equipped, at (that) time, to deal" with the "many other things which go on in a hospital, which have nothing to do with medicine." Def. Ex. 4 at 53-55.

 Plaintiff received his license to practice medicine in the State of New York on June 3, 1985. He began his final residency in internal medicine at Interfaith Medical Center on July 1, 1986, four years after he left St. Agnes. Interfaith's residency is a post-graduate clinical training program accredited by the Accreditation Council for Graduate Medical Education.

 In a letter to the Board dated January 5, 1988, regarding Greenlee's performance at Interfaith, Dr. Edward A. Geis, Associate Director of Internal Medicine at Interfaith, wrote that the faculty

 considered [Greenlee's] overall performance to range from low satisfactory to high satisfactory. In certain clinical areas and with certain tasks, his work was felt to be somewhat slow. His medical knowledge is average, but with certain specific deficiencies especially in Intensive Cardiology. His work habits, responsibility, and interpersonal skills are good to very good.

 Def. Ex. 20. Dr. Paul Montner, Chief of Critical Care, and Dr. Gerald M. Greenberg, Chief of Pulmonary Medicine at Interfaith, both wrote the Board in support of plaintiff's licensure application. Greenberg characterized plaintiff as a dedicated, conscientious physician, who related well to patients, families, and co-workers, and who demonstrated the highest level of personal integrity and ethical standards. Plaintiff's Request for Admissions 1.d. Interfaith offered Greenlee a second year medical residency. Greenlee declined the offer for further post-graduate medical training in order to commence practice.

 Plaintiff concluded his residency at Interfaith on June 30, 1987. On July 1, 1987, plaintiff was declared a diplomate of the National Board of Medical Examiners, having fulfilled the requirements for certification, including successful completion of a year of post-graduate clinical practice.

 Greenlee immediately relocated to the District of Columbia. On July 22, 1987, he submitted his application for a license to practice medicine in the District on the basis of endorsement. Plaintiff accepted a job as a cab driver pending the Board's granting of his medical license, as he had done throughout medical school and during all previous breaks in his medical education and practice.

 Following the hearing, the Office of the Corporation Counsel of the District of Columbia filed Proposed Findings of Fact, Conclusions of Law, and Order for the Board on June 13, 1988. Def. Ex. 22. The Proposed Order concluded that plaintiff had failed to satisfy the Board that he was professionally qualified to be issued a license to practice medicine and surgery in the District of Columbia on the basis of endorsement, and recommended that his application be denied.

 Plaintiff likewise submitted Proposed Findings of Fact, Conclusions of Law, and Order to the Board on July 7, 1988. Def. Ex. 21. In this proposed decision, plaintiff argued the Board should waive the examination requirement on the basis of a rule pending adoption by the Mayor, which was to take effect on August 5, 1988.

 On July 13, 1988, the Board issued its own Proposed Findings of Facts, Conclusions of Law, and Order, following the reasoning of the Corporation Counsel. On August 29, 1988, plaintiff responded by filing his Exceptions and Written Argument in Support Thereof to Proposed Decision of Hearing Panel.

 On December 14, 1988, the Board issued its Final Order, together with Findings of Fact and Conclusions of Law (together, "Final Decision"), denying plaintiff's license application. The Board based its denial of plaintiffs' application for licensure by endorsement on the fact that the requirements for licensure in New York were not "substantially equivalent" to those in the District of Columbia, as required by the statute. In particular, New York had not required satisfactory completion of a year-long residency, nor had plaintiff completed such a residency at the time he was licensed by New York in June 1985. Def. Ex. 21, at 2, 5.

 The Board also concluded, based on plaintiff's erratic education and employment history, that plaintiff had failed to establish to the Board's satisfaction that he possessed the appropriate skills, knowledge, judgment, and character to practice medicine as required by a rule promulgated by the Mayor on August 5, 1988. D.C. Code § 2-3305.3(a)(5) - (a)(17); D.C.M.R. § 4600.4 Def. Ex. 21 at 6-9, 11. Factual findings accompanying the Final Order stated as follows:

 Plaintiff had repeatedly absented himself from the practice of medicine by seeking and working at jobs wholly unrelated to medical practice between medical school and his first residency, between residencies, and immediately upon completing his interfaith residency, rather than engaging in some practice of medicine during those periods. . . and that plaintiff complained of being "burnt out," "very tired" and "unable to deal."

 Based on these findings, the Board concluded that

 Dr. Greenlee does not have the qualifications to practice medicine in the District of Columbia. His record demonstrates that he is unable to sustain a competent level of performance in the practice of medicine. Although he graduated from medical school in 1978, he was unable to complete one year of post-graduate clinical education until 1987. He failed three residencies. In between residency attempts, he drove a cab rather than pursue employment that would advance his knowledge and skills. Finally, after completing one year of residency training, he again found that the pressure was too great for him. Rather than continuing his training for a second year, he once again turned to driving a taxicab.

 The practice of medicine is a stressful occupation; residency training, in particular, is a test of a doctor's ability to perform under stress. Respondent's repeated failure and chronic under-achievement as a resident demonstrate to the Board that Respondent is unable to practice consistently at an acceptable level of competence. The one year of "satisfactory" training marked by certain deficiencies does not, on balance, persuade the Board that the Respondent ...

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