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Ellison v. Am. Bd. of Orthopaedic Surgery

3rd Circuit

August 30, 2021

The Third Circuit didn’t buy a “damned if I do; damned if I don’t” argument. Ellison is an orthopedic surgeon practicing in California. He wanted to move to northern New Jersey and practice at one of the hospitals there. Those hospitals generally grant medical staff privileges to physicians only if they have been certified by a member of the American Board of Medical Specialties (“ABMS”). Ellison consequently sought certification by ABOS — the ABMS member board that certifies orthopedic surgeons. But ABOS only certifies surgeons who complete its multistep certification exam. Ellison passed the first step of the exam, but ABOS prohibited him from taking the second step until he first obtained medical staff privileges at a hospital. Ellison had not yet applied for staff privileges at the hospitals in NJ. He believed they would reject his application because he was not board certified. So, Ellison sued ABOS under state law in New Jersey state court, and ABOS removed the matter to federal court. Ellison amended his complaint to allege ABOS violated the Sherman Act. The District Court dismissed the complaint, holding that Ellison failed to state a claim for relief. The Third Circuit reversed and held that the District Court did not have jurisdiction to address the suit’s merits because Ellison did not have standing. The Third Circuit noted that Ellison had neither applied for medical staff privileges nor alleged that he had taken any specific steps that would otherwise position him to practice at those hospitals, such as obtaining a license to practice medicine in New Jersey. Thus, because he did not plead enough facts to show he was “able and ready” to apply for staff privileges, Ellison did not sustain an “injury in fact”, a necessary standing element. Accordingly, his injury was speculative rather than concrete and imminent.

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