McKeesport Hospital v. Accreditation Council for Graduate Medical Education

Opinions of the United
1994 Decisions States Court of Appeals
for the Third Circuit

5-17-1994

McKeesport Hospital v. Accreditation Council for
Grad. Med'l Ed.
Precedential or Non-Precedential:

Docket 93-3194

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 UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 93-3194

MCKEESPORT HOSPITAL

V.

THE ACCREDITATION COUNCIL FOR GRADUATE MEDICAL EDUCATION,
an Unincorporated Association;
JOHN T. BOBERG, Ph.D. as Executive Secretary
of the Accreditation Council for Graduate Medical Education

THE ACCREDITATION COUNCIL FOR GRADUATE MEDICAL EDUCATION
and JOHN T. BOBERG, Ph.D.,
Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil Action No. 92-02335)

Argued December 10, 1993

Before: BECKER and NYGAARD, Circuit Judges,
and YOHN, District Judge*

(Opinion Filed May 17, 1994)

RICHARD S. DORFZAUN, ESQUIRE
DAVID B. FAWCETT, JR., ESQUIRE
Dickie, McCamey & Chilcote
Two PPG Place
Suite 400
Pittsburgh, PA 15222
DOUGLAS R. CARLSON, ESQUIRE (Argued)
GARY E. DYAL, ESQUIRE
Wildman, Harrold, Allen & Dixon
225 West Wacker Drive
Chicago, IL 60606
Attorneys for Appellants

1
* Honorable William H. Yohn, Jr., United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

ROBERT V. CAMPEDEL, ESQUIRE (Argued)
ANN BAILY, ESQUIRE
Doepken, Keevican, Weiss & Medved
600 Grant Street
USX Tower, 37th Floor
Pittsburgh, PA 15219
Attorneys for Appellee

WILLIAM M. JANSSEN, ESQUIRE
Saul, Ewing, Remick & Saul
3800 Centre Square West
Philadelphia, PA 19102
Attorney for Amici Curiae The American Board of Surgery, The
American Board of Colon and Rectal Surgery, The American Board of
Neurological Surgery, The American Board of Orthopaedic Surgery,
The American Board of Plastic Surgery, The American Board of
Thoracic Surgery, and The American Board of Urology

DOROTHY G. HARWOOD, ESQUIRE
The Federation of State Medical Boards
of the United States, Inc.
6000 Western Place
Suite 707
Forth Worth, TX 76107
Attorney for Amicus Curiae

JANET DUFFY CARSON, ESQUIRE
National Board of Medical Examiners
3930 Chestnut Street
Philadelphia, PA 19104
Attorney for Amicus Curiae

JOYCE McKEEVER, ESQUIRE
Office of Chief Counsel
Pennsylvania Department of State
619 Transportation and Safety Building
Harrisburg, PA 17120
Attorney for Amicus Curiae The Pennsylvania State Board of
Medicine

JACK R. BIERIG, ESQUIRE
Sidley & Austin
One First National Plaza
Chicago, IL 60603
Attorney for Amici Curiae The American Medical Association and
The American Dental Association

2
 OPINION OF THE COURT

NYGAARD, Circuit Judge.

McKeesport Hospital brought this 42 U.S.C. § 1983

action against the Accreditation Council for Graduate Medical

Education (the "ACGME") and the Executive Secretary of its

residency review committee for surgery, alleging that their

withdrawal of the accreditation of the Hospital's general surgery

residency program violated due process. The district court

entered a preliminary injunction blocking the accreditation

withdrawal. Because we conclude that the ACGME's conduct was not

state action, we will reverse.

I.

Pennsylvania's Medical Practice Act of 1985 (the

"Act"), 63 Pa. Cons. Stat. Ann. §§ 422.1 - 422.25, requires that

the admission standards, facilities, curricula, and training at

any medical college or "medical training facility" in the

Commonwealth "meet the requirements set by the [Pennsylvania

State Board of Medicine (the "Board")] and any accrediting body

which may be recognized by the board." Id. §422.23(a). The term

"medical training facility" includes a medical college, hospital

or other institution providing graduate medical training. Id.

§422.2. Graduate medical training, which is commonly referred to

as a residency, is defined in the Act as
training approved or recognized by the board
which is either:

3
 (1) accredited as graduate medical
education by any accrediting body
recognized by the board for the
purpose of accrediting graduate
medical education. . . ; or
(2) provided by a hospital
accredited by any accrediting body
recognized by the board and is
acceptable to an American specialty
board towards the training it
requires for the certification it
issues in a medical specialty or
subspecialty. . . .

Id. § 422.2.

The Act provides that
[i]t shall be the duty of the board, in its
discretion, periodically to ascertain the
character of the instruction and the
facilities possessed by each of the medical
colleges and other medical training
facilities offering or desiring to offer
medical training in accordance with the
requirements of this act.

Id. § 422.23(b). If the Board deems a program inadequate, "the

board shall not recognize the education or degrees obtained from

[it] during the period of inadequacy." Id. § 422.23(c). The

Board must provide "due notice" to any institution found not to

meet its standards. Id. Its actions, moreover, are "subject to

the right of notice, hearing and adjudication, and the right to

appeal therefrom, in accordance with the provisions of Title 2 of

the Pennsylvania Consolidated Statutes (relating to administra-

tive law and procedure)." Id. § 422.9.

The Board has by regulation recognized the ACGME as the

accrediting body for graduate medical training programs in

Pennsylvania. The relevant regulation reads
[t]he Board is responsible for determining
the character of instruction and the

4
 facilities possessed by each of the various
medical education institutions and hospitals
who carry out graduate medical education
programs in this Commonwealth. The Council on
Medical Education of the American Medical
Association [the ACGME's predecessor]
possesses the facilities and staffing
required to perform evaluations of the
qualifications of the various programs and
also the mechanism for accreditation of
acceptance programs. The Board and the
Council . . . work cooperatively in
evaluating and approving the training
programs in this Commonwealth. A comity
exists between the board and the Council . .
. under which all intended observations of
training programs for accreditation are
communicated to the Board and the Board makes
all requests for accreditation or
investigation of training programs to the
Council . . . . If an investigation of the
programs of the various institutions in this
Commonwealth is to be conducted, the Board
will provide one of its members or appoint an
individual to accompany the investigator on
each occasion. An institution within this
Commonwealth seeking approval of its programs
by the Council . . . will be informed that
action taken by the accrediting agency will
be related to the Board.

49 Pa. Code § 17.23. The ACGME is a private, unincorporated

association made up of representatives of five medical

organizations -- the American Board of Medical Specialties, the

American Medical Association, the American Hospital Association,

the Association of American Medical Colleges, and the Council of

Medical Specialty Societies -- that evaluates and accredits

residency programs throughout the United States.

The ACGME's review is governed by its own set of

standards, The Essentials of Accredited Residencies. The ACGME

has organized twenty-six residency review committees, one for

5
each of twenty-six medical specialties, that evaluate the

programs in each area under these standards. The committee for

surgery, for example, is composed of 12 members appointed by the

American Board of Surgery, the American College of Surgeons, and

the American Medical Association.

The evaluation process begins when an application is

submitted by the residency program's director. The committee

then sends a surveyor to the training facility to verify the

information. When reviewing a program in Pennsylvania, the ACGME

notifies the Board of the visit, and a Board member or

representative may accompany the surveyor to the facility. The

surveyor meets with faculty and students, reviews program data,

and submits a report to the committee. The submission of the

report ends the site surveyor's role; he or she does not

participate in the committee's decision.

The residency review committee then reviews the report

and the program's file, and recommends either full accreditation,

probation, or withdrawal of accreditation. A training facility

that is dissatisfied with the recommendation may request

reconsideration by the committee and, if the committee adheres to

its position, may seek a hearing before an appeals panel

consisting of three directors of accredited residencies in the

program's specialty. A facility requesting an appeals panel

hearing receives a list of potential members from which it may

delete up to one-third of the candidates; the panel is

constituted from those who remain. The facility may submit

additional information at both the reconsideration and appeal

6
stages and may be represented by counsel and present witnesses

before the appeals panel.

The appeals panel's recommendation, the material it

considered, and a transcript of its hearing are reviewed and

either adopted or rejected by the ACGME's executive committee.

The executive committee's determination is then voted on by the

ACGME, whose decision is final. A training facility whose

accreditation is withdrawn may, however, reapply for ACGME

accreditation at any time.

II.

McKeesport Hospital, a community hospital in

McKeesport, Pennsylvania, offers graduate medical training in

several specialties, including general surgery. The Hospital's

general surgery residency program was first accredited by the

ACGME's predecessor in 1961, although its ACGME accreditation has

been provisional since 1979. The program has had Board

recognition since the Board began recognizing residency programs

under the Act.

After a November 1990 site visit and its review, the

ACGME's residency review committee for surgery recommended

withdrawal of the program's accreditation, citing five

deficiencies that allegedly rendered the program not in

substantial compliance with The Essentials of Accredited

Residencies. The Hospital requested reconsideration and the

committee, as a result, rescinded one of the deficiencies and

extended the withdrawal's effective date by one year. The

Hospital appealed to an appeals panel, which held a hearing and

7
ultimately affirmed the committee's action. The appeals panel's

decision was adopted by the ACGME's executive committee and then

by the entire ACGME, and the Hospital was notified that the

program's ACGME accreditation would be withdrawn.

It does not appear that the ACGME communicated this

decision to the Board. Rather, the Hospital sought review of the

ACGME's decision by the Board. The Board, however, dismissed the

case, concluding that it had no authority to intrude upon the

ACGME's accreditation process and, because the Hospital had

failed one of the two criteria to be a medical training facility

in Pennsylvania, no jurisdiction over the Hospital's appeal. The

Hospital appealed the Board's dismissal to the Pennsylvania

Commonwealth Court.

Before the Commonwealth Court rendered any decision in

the case against the Board, however, the Hospital commenced this

action against the ACGME, alleging that its decision to withdraw

the program's accreditation lacked due process.0 After a three-

day hearing, the district court made extensive findings of fact

and conclusions of law and granted the Hospital's motion for a

preliminary injunction to prevent the accreditation withdrawal

from becoming effective. The ACGME appealed.

After this appeal was filed, the Commonwealth Court

reversed the Board's dismissal order. McKeesport Hosp. v.

Pennsylvania State Bd. of Medicine, 628 A.2d 476 (Pa. Commw. Ct.

0
In addition to the due process claim, the Hospital's complaint
asserted federal antitrust and Pennsylvania contract law claims.
The district court dismissed the antitrust and breach of contract
counts; that dismissal is not at issue on appeal.

8
1993). The Commonwealth Court determined that under the plain

language of the Act, the Board is "the final arbiter of matters

involving the accreditation of medical training facilities in

Pennsylvania," and remanded the case to the Board for a hearing.

Although the court agreed that the Board could not intervene in

the ACGME's accreditation process, it disagreed that the ACGME's

decision ended the Board's inquiry. Id. at 479 & n.12. The

court stated: "[a]ccreditation by the ACGME merely is a tool

which establishes critical facts leading to the Board's

recognition" of a medical training facility. Id. at 479. The

court ordered that the program remain recognized until the Board

holds a hearing and issues a final order in the case. Id. The

Board has filed a petition for allowance of appeal to the

Pennsylvania Supreme Court, but that court has not yet granted or

denied allocatur.

III.

The district court had jurisdiction over the Hospital's

section 1983 claim under 28 U.S.C. §§ 1331 and 1343(a)(3); we

have jurisdiction over this appeal under 28 U.S.C. § 1292(a)(1).

We review the grant of a preliminary injunction to determine

"whether there has been 'an abuse of discretion, a clear error of

law, or a clear mistake on the facts.'" Hoxworth v. Blinder,
Robinson & Co., 903 F.2d 186, 198 (3d Cir. 1990) (citation

omitted). If we find either or both of the fundamental

preliminary injunction requirements -- a likelihood of success on

the merits and the probability of irreparable harm if relief is

9
not granted -- to be absent, the district court's order cannot be

affirmed. Id.

The Fourteenth Amendment protects individuals against

government action. To succeed on the merits of its Section 1983

due process claim, the Hospital must therefore show that the

action of the ACGME, a private entity, is "fairly attributable"

to the Commonwealth of Pennsylvania. Lugar v. Edmondson Oil Co.,

457 U.S. 922, 937, 102 S. Ct. 2744, 2753 (1982). The district

court concluded, based on the "close nexus between the ACGME and

the Board" and "the delegation of the Pennsylvania State Board of

Medicine's duties to the ACGME" that it was likely that the

Hospital would be able to do so. Our review of this legal

determination, a prerequisite to the grant of the injunction, is

plenary. John F. Harkins Co. v. Waldinger Corp., 796 F.2d 657,

658 (3d Cir. 1986), cert. denied, 479 U.S. 1059, 107 S. Ct. 939

(1987).

The question of whether a private accrediting body's

decision constitutes state action is, for us, one of first

impression. In cases involving accrediting organizations other

than the ACGME, a number of courts have not found state action.

Medical Inst. of Minn. v. National Ass'n of Trade & Technical
Sch., 817 F.2d 1310, 1312-14 (8th Cir. 1987); Peoria Sch. of

Business, Inc. v. Accrediting Council for Continuing Educ. &

Training, 805 F. Supp. 579, 581-83 (N.D. Ill. 1992); Transporta-

tion Careers, Inc. v. National Home Study Council, 646 F. Supp.

1474, 1478-79 (N.D. Ind. 1986); Dietz v. American Dental Ass'n,
479 F. Supp. 554, 556 (E.D. Mich. 1979); Parsons College v. North

10
Central Ass'n of Colleges & Secondary Sch., 271 F. Supp. 65, 70

(N.D. Ill. 1967). We have uncovered only one case where state

action was found, Marjorie Webster Junior College v. Middle

States Ass'n of Colleges & Secondary Sch., 302 F. Supp. 459

(D.D.C. 1969), rev'd on other grounds, 432 F.2d 650 (D.C. Cir.),

cert. denied, 400 U.S. 965, 91 S. Ct. 367 (1970), but it was

decided long before the Supreme Court's state action trilogy,

Lugar v. Edmondson Oil Co., 457 U.S. 922, 102 S. Ct. 2744 (1982),

Rendell-Baker v. Kohn, 457 U.S. 830, 102 S. Ct. 2764 (1982), and

Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct. 2777 (1982), which

binds us now.

These cases do not answer our question as to the ACGME,

because the state action determination is a "necessarily fact

bound inquiry." Lugar, 457 U.S. at 939, 102 S. Ct. at 2755.

Before we begin that inquiry, however, we note that a New York

state court indicated in dicta that an accreditation decision by

the ACGME did not fall within the state action doctrine.

Interfaith Medical Ctr. v. Sabiston, 133 Misc.2d 308, 309, 507

N.Y.S.2d 124, 125 (1986), aff'd in part and rev'd in part on
other grounds, 136 A.D.2d 238, 527 N.Y.S.2d 48 (2d Dept. 1988).

Moreover, although a Maryland district court found an ACGME

accreditation withdrawal to be state action in St. Agnes Hosp. v.

Riddick, 668 F. Supp. 478, 479-82 (D. Md. 1987), it later

questioned that conclusion in light of the Supreme Court's

decision in National Collegiate Athletic Ass'n v. Tarkanian, 488

U.S. 179, 109 S. Ct. 454 (1988), but did not resolve the issue

11
because it ruled for the defendant on other grounds. St. Agnes

Hosp. v. Riddick, 748 F. Supp. 319, 326 (D. Md. 1990).

Because the Hospital's challenge is to the ACGME's

decision to withdraw the program's accreditation alone, this case

presents a "typical" state action issue -- "a private party has

taken the decisive step that caused the [alleged] harm to the

plaintiff, and the question is whether the state was sufficiently

involved to treat that decisive conduct as state action" and thus

permit the Hospital to sue the ACGME instead of the state Board.

Tarkanian, 488 U.S. at 192, 109 S. Ct. at 462. State action may

be found if the private party has acted with the help of or in

concert with state officials. Compare Edmonson v. Leesville

Concrete Co., 500 U.S. 614, 111 S. Ct. 2077 (1991), and Lugar,

supra, and Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct.

1598 (1970) (finding state action) with Flagg Bros., Inc. v.

Brooks, 436 U.S. 149, 98 S. Ct. 1729 (1978) (finding no state

action). Alternatively, it may be found when the private party

has been "delegated . . . a power 'traditionally exclusively

reserved to the State.'" Flagg Bros., 436 U.S. at 157, 98 S. Ct.

at 1734 (quoting Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352, 95 S. Ct. 449, 454 (1974)). Finally, state action may

be found if "there is a sufficiently close nexus between the

state and the challenged action of the [private] entity so that

the action of the latter may fairly be treated as that of the

State itself." Jackson, 419 U.S. at 351, 95 S. Ct. at 453.

We conclude on the undisputed facts of this case that

the ACGME's withdrawal of the program's accreditation was not

12
state action. First, it is certain that no state officials

participated in the ACGME's accreditation withdrawal. The

applicable standard is one of "overt, significant assistance."

Edmonson, 500 U.S. at ___, 111 S. Ct. at 2084. Although a Board

member did accompany the ACGME's site surveyor to the Hospital,

he acted only as an observer, and played no part in the

surveyor's inspection or in any stage of the ACGME's decision.

This is not enough to make the ACGME's withdrawal decision state

action. Cf. Flagg Bros., 436 U.S. at 156-57, 98 S. Ct. at 1733-

34 (in a suit where the plaintiff was challenging a warehouse-

man's threat to sell her belongings pursuant to a state self-help

statute, the fact that the city marshal had supervised the

plaintiff's eviction and arranged for her possessions to be

stored at the defendant's warehouse did not constitute overt

official involvement in the challenged conduct).

The district court concluded that the Board delegated

its duties to the ACGME, thereby rendering the ACGME's actions

fairly attributable to the state. We cannot agree. As the

Commonwealth Court's decision makes clear, under the Act the

state Board remains ultimately responsible for approving medical

training facilities in Pennsylvania. Cf. Tarkanian, 488 U.S. at
195-98, 109 S. Ct. at 464-65 (finding no delegation when the

state retained the ability to adopt or reject a private

association's decision). Merely because the state Board deems

its obligation met by following the ACGME's accreditation

decisions does not imbue the ACGME with the authority of the

state nor shift the responsibility from the state Board to the

13
ACGME. The Board remains the state actor. Moreover, even if a

delegation occurred, that alone is insufficient. For state

action, the private actor must be exercising a power that is

"'traditionally the exclusive prerogative of the state[,]'" Blum,

457 U.S. at 1005, 102 S. Ct. at 2786 -- for example, running an

election, Terry v. Adams, 345 U.S. 461, 73 S. Ct. 809 (1953), or

providing a municipal park, Evans v. Newton, 382 U.S. 296, 86 S.

Ct. 486 (1966). This, of course, is not the case here.

Medical residencies are a vital component of medical

education, providing new doctors with a supervised transition

"between the pure academics of medical school and the realities

of medical practice." Interfaith Medical Ctr. v. Sabiston, 136

A.D.2d 238, 239, 527 N.Y.S.2d 48, 49 (2d Dept. 1988). The

evaluation and accreditation of medical education in this country

is neither a traditional nor an exclusive state function. Rather,

United States medical schools have been privately accredited for

nearly a century. See Rosemary Stevens, American Medicine and

the Public Interest 55-73 (1971). The ACGME's predecessor, the

Council on Medical Education, began accrediting medical schools

in 1906, Siirila v. Barrios, 398 Mich. 576, 614, 248 N.W.2d 171,
186 (1976) (Williams, J., concurring), and has been reviewing and

evaluating residency programs since the 1950s, Stevens, supra, at

378-414. That, in doing so, the ACGME serves the public interest

does not make it a state actor. Rendell-Baker, 457 U.S. at 842,

102 S. Ct. at 2772; Jackson, 419 U.S. at 352-55, 95 S. Ct. at

454-55. Furthermore, although the state Board has taken on the

function of approving Pennsylvania residency programs under the

14
Act, "that legislative policy choice in no way makes these

services the exclusive province of the State." Rendell-Baker,

457 U.S. at 842, 102 S. Ct. at 2772.

The district court also found the connection between

the state Board and the ACGME sufficient to turn the latter into

a state actor. We must disagree. Sometimes, a state and an

ostensibly private entity are so interdependent that state action

will be found from their symbiotic relationship alone. See

Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct.

856 (1961) (finding state action based on lease relationship that

benefitted and obligated both parties). The relationships of the

University of Pittsburgh and Temple University to the Common-

wealth provide an example. The Universities are designated by

their governing legislation as "instrumentalit[ies] of the

Commonwealth" and "State-related institution[s]." These statutes

provide for one-third of the Universities' voting trustees to be

appointed by state officials and for several officials to serve

as ex officio trustees; allow the Commonwealth to set tuition and

fee schedules; promise annual appropriations, to be used as the

Commonwealth specifies; impose stringent reporting requirements

as to fiscal and other affairs; authorize the same capital

development assistance as allowed wholly-owned state colleges;

and create tax exemptions for income derived from bonds the

Universities issue and loans secured by mortgages on their

properties. See Krynicky v. University of Pittsburgh, 742 F.2d
94, 101-02 (3d Cir. 1984), cert. denied, 471 U.S. 1015, 105 S.
Ct. 2018 (1985); Braden v. University of Pittsburgh, 552 F.2d

15
948, 959-61 (3d Cir. 1977). The ACGME's relationship to the

state is clearly distinguishable. The ACGME is self- governed

and financed, and its standards are independently set; the state

Board simply recognizes and relies upon its expertise.

Alternatively, a connection between the state and a

specific decision of a private entity may render that decision

chargeable to the state. See Jackson, 419 U.S. at 351, 95 S. Ct.

at 453. Under this approach, however, state action will be found

only "when [the state] has exercised coercive power or has

provided such significant encouragement, either overt or covert,

that the [private decision] must in law be deemed that of the

State[;]" "mere approval of or acquiescence in" the decision is

not enough. Blum, 457 U.S. at 1004, 102 S. Ct. at 2786. The

required state coercion or encouragement of the ACGME's actions

is not present here.

The Hospital is challenging the ACGME's decision to

withdraw the program's accreditation, not the Board's action in

response. The Board, however, does not control or regulate the

ACGME's standard-setting or decision-making processes. Although

it recognizes them, state law does not dictate or influence those

actions. Rather, the ACGME's decisions are "judgments made by

private parties according to . . . standards that are not

established by the State." Blum, 457 U.S. at 1008, 102 S. Ct.
2788. That the Board bases its approval of medical residency

programs on ACGME accreditation does not turn the ACGME's

decisions into state action. See Tarkanian, supra (state
university's suspension of basketball coach in compliance with

16
NCAA recommendation did not convert NCAA decision into state

action); Blum, supra (state officials' adjustment of Medicaid

benefits in response to private nursing homes' decisions to

discharge or transfer patients did not render the state

responsible for those decisions). To paraphrase the Supreme

Court's conclusion in Tarkanian, it is more accurate to say that

the Board conducts its approval of medical residency programs

under color of the ACGME's policies than that those policies were

developed and enforced under color of Pennsylvania law. See

Tarkanian, 488 U.S. at 199, 109 S. Ct. at 466.

IV.

Accordingly, because we conclude the ACGME performed no

state action, we will vacate the preliminary injunction order and

remand the cause to the district court.

17
McKeesport Hospital v. The Accreditation Council for Graduate

Medical Education, an Unincorporated Association; JOHN T. BOBERG,

Ph.D., as Executive Secretary of the Accreditation Council for

Graduate Medical Education, No. 93-3194

BECKER, Circuit Judge, concurring in the judgment.

I cannot agree with the majority that there is no state

action in this case. As I read the record, Pennsylvania has

totally ceded any meaningful responsibility to conduct reviews of

residency programs to the Accreditation Council for Graduate

Medical Education (the "ACGME"), and has delegated to the ACGME

the power to find the critical facts that are necessary for the

Pennsylvania State Board of Medicine (the "Board") to determine

whether a residency program satisfies the Board's standards. In

essence, the ACGME decides whether residents trained at such a

facility can be licensed to practice in Pennsylvania. I believe

that this delegation of power with respect to a function that

will have a direct effect on licensing decisions is state action.

I nevertheless concur in the judgment because I am satisfied

that, when it withdrew accreditation of McKeesport's surgical

residency program, the ACGME afforded McKeesport due process.

I. State Action

In this case, as the majority recognizes, a private

party has taken the decisive step that injured the plaintiff. The

case is, therefore, not controlled by National Collegiate
Athletic Association v. Tarkanian, 488 U.S. 179, 109 S. Ct. 454,

18
102 L. Ed. 2d 469 (1988), which involved a situation in which the

state took the final action that harmed the plaintiff.

Consequently, we must determine whether state action exists

either because there is a "nexus" between the Board and the

ACGME, see Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351,

95 S. Ct. 449, 453, 42 L. Ed. 2d 477 (1974), or a "joint

participant" relationship between the Board and the ACGME, see

Burton v. Wilmington Parking Authority, 365 U.S. 715, 725, 81 S.

Ct. 856, 862, 6 L. Ed. 2d 45 (1961).0 In my view there is state

action under either a "nexus" or "joint participant" approach.

That is because the relationship between the Board and the ACGME

is sufficiently direct that the ACGME's functions can be fairly

attributed to the Board, and because, as the state regulations

make clear, the Board and the ACGME act in concert in determining

whether a residency program will be licensed.

Although there is little actual participation by

Pennsylvania in the residency reviews conducted by the ACGME,

that is because the State has delegated the factfinding role to
the ACGME. The importance of this delegation should not be

underestimated. The ACGME finds the facts that determine whether

a residency program should be accredited. The Board so far has

not independently reviewed residency programs, nor has it

demonstrated any inclination to do so in the future. The Board's

role, even in light of the Commonwealth Court's decision in

0
We have held that the Burton "joint participant" test survived
the so-called Lugar trilogy. See Krynicky v. University of
Pittsburgh, 742 F.2d 94, 101 (3d Cir. 1984), cert. denied, 471
U.S. 1015, 105 S. Ct. 2018, 85 L. Ed. 2d 300 (1985).

19
McKeesport v. Pennsylvania State Board of Medicine, 628 A.2d 476

(Pa. Commw. Ct. 1993), seems to be limited to reviewing the

adequacy of the record developed by the ACGME. Thus the ACGME,

in effect, performs the threshold adjudicatory function in

Pennsylvania's residency program approval scheme.

Although Pennsylvania has delegated to the ACGME only a

threshold adjudicatory power and not the ultimate authority to

approve the residency programs, it is clear that if the ACGME or

a similar organization did not exist, the Board would have to

perform the ACGME's function itself. See Marlboro Corp. v.

Association of Independent Colleges & Schools, Inc., 556 F.2d 78,

80 (1st Cir. 1977) (suggesting that state action exists when it

appears that if the accreditation agency did not perform its

function the government would do so itself). Delegation of this

function to the ACGME does not change the nature of the function,

and does not remove the process from constitutional mandates.

Indeed, the State benefits financially by having the ACGME incur

the expense of reviewing the programs, something we have said is

an important factor in finding state action. See Krynicky v.
University of Pittsburgh, 742 F.2d 94, 101 & n.9 (3d Cir. 1984),

cert. denied, 471 U.S. 1015, 105 S. Ct. 2018, 85 L. Ed. 2d 300

(1985).

Moreover, the key accreditation cases upon which the

majority relies, Medical Institute of Minnesota v. National

Association of Trade & Technical Schools, 817 F.2d 1310, 1312-14

(8th Cir. 1987), Peoria School of Business, Inc. v. Accrediting
Council for Continuing Education & Training, 805 F. Supp. 579,

20
581-83 (N.D. Ill. 1992), and Parsons College v. North Central

Association of Colleges, 271 F. Supp. 65, 70 (N.D. Ill. 1967),

differ in critical respects from this case.0 In Medical

Institute of Minnesota, the plaintiff had claimed that state

action existed because: 1) the accreditation decision would
0
The majority also relies on two other cases which, in my
opinion, do not strengthen its position. First, the majority
states that Interfaith Medical Center v. Sabiston, 133 Misc.2d
308, 309, 507 N.Y.S.2d 124, 125 (1986), aff'd in part and rev'd
in part on other grounds, 136 A.D.2d 238, 527 N.Y.S.2d 48 (2d
Dept. 1988), held that the ACGME is not a state actor. But in
Interfaith the entire discussion of the state action question was
as follows: "[t]his court, at its level, will refrain from
viewing plaintiff's complaint under the doctrine of 'State
Action' nor expand the doctrine to embrace the allegations of
plaintiff's complaint." Id. There is simply no analysis of the
question.
Second, the majority cites St. Agnes Hospital, Inc. v.
Riddick, 748 F. Supp. 319, 326-27 (D. Md. 1990) ("St. Agnes II"),
as a case in which the court cut back on its earlier conclusion
in St. Agnes Hospital, Inc. v. Riddick, 668 F. Supp. 478, 480 (D.
Md 1987) ("St. Agnes I"), that the ACGME was a state actor.
According to the majority, St. Agnes II "questioned its
conclusion [that the ACGME was a state actor] in light of the
Supreme Court's decision in [Tarkanian]." The majority, however,
ignores the following language from St. Agnes II:

The circumstances of Tarkanian, however, are certainly
distinguishable from the facts sub judice. Most
importantly, the final act that caused the alleged harm
to Tarkanian was committed by a party conceded to be a
state actor, while in this case, the ACGME has taken
the decisive step. The Court in Tarkanian emphasized
that the [National Collegiate Athletic Association
("NCAA")] was not authorized to directly discipline
Tarkanian or any other state employee. In St. Agnes,
the ACGME had the authority and did in fact make the
final determination to withdraw plaintiff's
accreditation. Consequently, Tarkanian is not
analogous to the situation at hand.

This language hardly supports the majority's implication that St.
Agnes II reversed itself on its state action conclusion. To the
contrary, it appears that the court reaffirmed that the ACGME was
a state actor.

21
affect eligibility of its students for federal aid; and 2) the

accreditation agency was regulated by the Department of

Education. In Peoria and Parsons, the plaintiffs made the

eligibility for federal aid argument and added the argument that

state action existed because the accreditation agency was

incorporated, and thus a creature of state law.

The arguments asserted in those cases were easily

disposed of under traditional state action doctrine. Collateral

consequences of eligibility for federal aid is not enough for

state action under Blum v. Yaretsky, 457 U.S. 991, 102 S. Ct.

2777 (1982); a company is not a state actor merely because it is

itself regulated, see Jackson, 419 U.S. at 352-55, 95 S. Ct. at

454-55; and a corporate charter cannot create "state action"

because such a rule would transform nearly every business entity

into a state actor, cf. Burton, 365 U.S. at 726, 81 S. Ct. at 862

(recognizing the need to avoid a rule that creates universal

application of state actor status).

In this case, by contrast, McKeesport can point to much

more than the collateral consequences of the negative

accreditation decision, regulation of the accreditation entity,

or a corporate charter to show state action. It can point to a

statute, Pa. Stat. Ann. 63 tit., § 422.23, and a regulation, 49

Pa. Code § 17.23, which recognize 1) that the facilities of the

ACGME are better suited to evaluate the programs, and 2) that the

Board will rely on the ACGME when making its own decisions.

Indeed § 17.23 recognizes a relationship of "comity" between the

Board and ACGME which would require a formal exercise of state

22
power to be changed. The Board made this clear in its briefs

before the Commonwealth Court: "In the event the Board should

choose to withdraw its endorsement [of] the ACGME accreditation

process, it will do so by amending its regulations." Although

the majority fails to recognize this comity between the Board and

the ACGME, we have said before that such a relationship supports

a finding of state action when ensconced in regulations. See

Krynicky, 742 F.2d at 94 (one factor supporting state action was

the fact that relationships between the state and two

universities were defined by statute and regulation, and a formal

exercise of legislative power would be necessary to change that

relationship).

Additionally, McKeesport can point to the fact that the

ACGME's decisions have a direct impact on decisions made by the

Board to recognize residency programs and, ultimately, to license

doctors. The directness of this relationship is something that

the Board itself has demonstrated quite clearly in its briefs

before the Commonwealth Court by taking the position that it does

not even have jurisdiction to review the ACGME's decision. In

particular, the Board asserted that "[t]he Legislature has not

conferred upon the Board the authority to be a 'super accrediting

agency.'" According to the Board, that power has been delegated:

"[a]ccreditation by the ACGME is a tool which establishes a

critical fact leading to the Board's recognition that an

applicant's training meets the statutory requirements. This is

consistent with the Constitution of Pennsylvania and the law

related to the delegation of governmental functions." Indeed,

23
the Commonwealth Court accepted this characterization of the

delegation of power to the ACGME in its opinion interpreting the

statutory scheme. McKeesport, 628 A.2d at 479.

The majority's statement that such a delegation is not

enough because the delegation must be of a power which has been

traditionally the exclusive prerogative of the state, is, I

believe, out of step with current state action doctrine. To

begin with, the assertion seems to come too close to saying that

the only time the exercise of state delegated power can create

state action is when the power being exercised is traditionally

the exclusive function of the state. I am not sure that is even

a correct statement of the "public function" approach after

Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct.

2077, 114 L. Ed. 2d 660 (1991), which seemed to eliminate the

"exclusivity" requirement of the public function test for state

action. Id. at 2083, 2085 (describing the public function

question as whether "the actor is performing a traditional

governmental function").

A delegation of state authority can certainly show

nexus or joint participation even if the function is not a

traditional and exclusive state function. That is the clear

implication of Tarkanian, 488 U.S. at 195, 109 S. Ct. at 464,
which asked whether there was a delegation of state power in the

context of applying the Burton "joint participant" approach. And

Tarkanian was not novel in this respect. Courts commonly hold

that a state agency, like a county hospital district, for

example, is a state actor even though it is not engaged in

24
actions that are traditionally the exclusive province of the

state. See, e.g., Stern v. Tarrant County Hosp. Dist., 755 F.2d

430, 433 (5th Cir. 1985), cert. denied, 476 U.S. 1108, 106 S. Ct.

1957, 90 L. Ed. 2d 365 (1986). And state agencies are state

actors largely because they are exercising some form of delegated

authority. Id.; see also Lombard v. Louisiana, 373 U.S. 267,

282, 83 S. Ct. 1122, 1129, 10 L. Ed. 2d 338 (1963) (Douglas, J.,

concurring) (stating that a state agency is a state actor because

it has the requisite nexus). Why should not the same be true

when the state delegates authority to a "private" party? As

Edmonson put it, "[t]he fact that the government delegates some

portion of [its] power to private litigants does not change the

governmental character of the power exercised." Edmonson, 111 S.

Ct. at 2087.0

Furthermore, notwithstanding any theoretical

relationship between the Board and the ACGME, the practical, day-

to-day relationship between the Board and the ACGME evidences a

delegation sufficient to create state action. Tarkanian,

although not controlling, is instructive on this point. In

Tarkanian, the Court held that there had not been a sufficient
delegation of authority to the NCAA in part because the

University of Nevada at Las Vegas ("UNLV") and the NCAA had

"acted much more like adversaries than like partners engaged in a

0
Nor do I think it makes a difference to the analysis that the
ACGME claims that Pennsylvania has unilaterally deputized it to
perform the accreditation decisions for the state. As I see it,
the question whether someone is a state actor depends on whether
it is exercising (or purporting to exercise) state power, not
whether it has sought such power.

25
dispassionate search for the truth." Tarkanian, 488 U.S. at 196,

109 S. Ct. at 464. It was largely on the basis of this

adversarial relationship that the Court was able to distinguish

the "joint participant" cases like Burton and Dennis v. Sparks,

449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980), which had

found state action in part by concluding that the state and the

private party had acted in concert. See Tarkanian, 488 U.S. at

196 & nn.16, 17; 109 S. Ct. at 464 & nn.16, 17.

No such adversarial relationship exists in this case.

Quite to the contrary, the relationship between the Board and the

ACGME is extremely close. As has been mentioned above, the Board

quite clearly has taken the position that it will in no way

challenge the ACGME's decisions and will simply rubber stamp any

decision that the ACGME has made. Indeed, it does not wish even

to review the ACGME's decisions, having taken the position that

it has no jurisdiction over them. In terms of gauging the

practical relationship of the Board and the ACGME, the Board's

arguments are powerful evidence that the Board has done, and will

continue to do, everything it can to pass off its accreditation

responsibility to the ACGME.

Finally, while it may be true, as the majority states,

that the accreditation of medical residency facilities is not a

traditional and exclusive function of the state, there is little

doubt that the ACGME's decision is a vital component of the

licensing scheme for residency programs, and, ultimately, of the

licensing scheme for doctors. Graduation from an approved and

accredited residency program is a prerequisite to an unrestricted

26
license to practice medicine in Pennsylvania. See Pa. Stat.

Ann. tit. 63, § 422.29(b). And licensing of doctors is, by all

accounts, a traditional and exclusive state function, since it

lies at the core of the state's police power (to protect the

health and welfare of its citizens). We should be careful not to

permit a state to insulate a critical component of that licensing

scheme from constitutional requirements simply by delegating that

component to a private organization.

In sum, Pennsylvania has formally deputized the ACGME

to exercise the state's duty to collect and analyze the critical

facts for determining the qualification of residency programs;

the State directly benefits financially from this relationship

with the ACGME; and the Board and the ACGME act in concert in

making any accreditation decisions. I believe that these facts

make the ACGME a state actor. I must therefore address the due

process issues raised on this appeal.

II. Due Process

Issues of procedural and substantive due process are by

their nature highly contextual inquiries. Rules requiring

adequate notice and an opportunity to be heard, as well as rules

requiring that decisions be supported by substantial evidence and

not be arbitrary and capricious, are little more than general

guideposts when applied to any particular case. The facts

dominate the inquiry. A review of the facts demonstrates that

the ACGME provided McKeesport all the process it was due.

A. Background

27
 1. The ACGME's procedures.

As the majority opinion mentions, the ACGME has in

place an elaborate accreditation scheme that has both substantive

and procedural components. The substantive components are

specified in The Essentials of Accredited Residencies (the

"Essentials"), which details the requirements for accreditation.

Among other things, the Essentials directs residency programs to

provide certain types of surgical training and to ensure that

each resident gets a similar range of operative experience. It

also directs programs to teach and to maintain a certain level of

scholarly activity, such as publishing articles in peer-reviewed

journals. Programs must be in "substantial compliance" with the

Essentials to be accredited. Although this standard leaves the

ACGME some flexibility when making accreditation decisions, the

Essentials otherwise provides residency programs with fairly

detailed guidance regarding the types of clinical and academic

training they must provide.

The procedural components are specified in The Manual

of Structure and Functions for Graduate Medical Education Review
Committees (the "Manual"), which outlines the procedures for

accreditation, including the procedures for withdrawing

accreditation. According to the Manual, before an accreditation

can be withdrawn the ACGME must conduct a seven stage process: 1)

the program director submits documents to the ACGME; 2) a site

visit is made by a member of the ACGME field staff; 3) the

ACGME's Residency Review Committee ("RRC") assembles the

information and decides whether to withdraw accreditation; 4) the

28
RRC may reconsider an adverse ruling; 5) the ACGME's appeals

panel decides whether the adverse ruling was supported by

substantial or credible evidence; 6) the ACGME's Executive

Committee reviews the appeals panel's ruling, and, if it agrees

with the adverse ruling, informs the full ACGME; and 7) the

ACGME, at a plenary session, makes the final decision whether to

withdraw accreditation. Throughout the process the residency

program may submit additional information about the program as

long as the information relates to the status of the program

before the review began.

2. Withdrawal of McKeesport's accreditation.

The McKeesport surgical residency program has had a

long history of substandard performance. Although it has been

involved in the accreditation process since the 1960's, it has

never reached full accreditation status. The program has

continuously been engaged in a cycle of provisional

accreditation, followed by voluntary or involuntary withdrawal of

accreditation, followed by reapplication.

This appeal is part of the latest cycle. Following its

review of the McKeesport program in 1989, the RRC voted to grant

provisional accreditation. At that time, however, the RRC

expressed "serious concern" that five areas of the program were

deficient: 1) basic science education, 2) scholarly activity, 3)

operative data (which was unreliable), 4) operative experience

(which was too variable), and 5) numbers of operations in several

areas (they were insufficient).

29
 The next review, the one at issue here, began in late

1990. Despite a generally positive review from the site

surveyor, the RRC decided to withdraw McKeesport's accreditation.

The RRC cited five areas of deficiency with citations to the

relevant parts of the Essentials: 1) lack of scholarly activity,

2) failure to provide accurate data, 3) inadequate pre- and post-

operative experience, 4) an excessive drop-out rate, and 5)

otherwise deficient operative experience. As the RRC's review

suggests, many of the problems that had been identified in 1989

remained in 1990.

After the adverse recommendation from the RRC,

McKeesport exhausted all of the internal remedies available to it

(outlined in the Manual). It first requested that the RRC

reconsider its decision. The RRC complied. As part of the

reconsideration procedure, two RRC committee members prepared

separate reports on McKeesport's program and both recommended

that RRC sustain the withdrawal of accreditation. Although the

RRC rescinded one of the five areas of deficiency (the drop-out

rate), it reaffirmed its decision to withdraw accreditation.

McKeesport then appealed. At the appeal, McKeesport

was represented by counsel, made extensive oral argument, and

submitted four volumes of additional material. McKeesport also

questioned one of two RRC members who had reviewed McKeesport

about the reasons for the withdrawal. The appeals panel upheld

30
the RRC's decision to withdraw accreditation.0 In summary the

appeals panel stated that

0
It cited the following reasons:

1. [T]here is little independent scholarly activity
within the Department of Surgery at McKeesport
Hospital. The only potential scholarly activity that a
resident may participate in is by going to another
institution. There is no attempt at an ongoing
clinical research program and there have been no
articles published in peer-review journals, even though
there are a few papers that have received awards from
the local chapter of the American College of Surgeons.
Each resident allegedly completes a clinical study each
year. These reports have not appeared in print. While
there is some evidence of resident research projects,
the four full-time faculty are woefully deficient in
spite of previous warning[s] in this regard.

2. After review of the appropriate documents, the
Appeals Panel recognizes an ongoing inadequacy in the
accruing of data, not only as to types of operations
done, but also who has done those operations. The
Program Director depends entirely on the house staff to
accumulate the data and it is often flawed by the fact
that there has been inadequate participation on the
part of the Program Director in the data collecting
process and therefore there is no check and balance
system. The Program Director does not know in some
instances whether the resident has done the case or
whether it is on a private patient because it will
always be reported as a first assistant. These
continuing flaws in accruing data and monitoring it
carefully with a check and balance system by the
Program Director leaves the Board to sustain the
citation.

3. Continuation of care by residents is poorly
documented. There is a lack of careful follow-up by
the Program Director or his designee to make sure there
is continuity of care on the part of the house staff
either in the public clinic or in the private offices.
The Panel searched the voluminous records of the public
clinic and could not find consistent attendance by the
senior residents. There is no documented teaching
during these clinic sessions. It appears that the
junior residents attend these clinics, but there is no

31
 [t]he surgical leadership at the McKeesport
Hospital does not fully understand that the
citations here (insufficient data, continuity
of care, scholarly activity, and sufficient
number of operations) are the very fabric by
which we are judged. There seems to be
little recognition that this is important in
the management of a residency training
program, and the Board of Appeals therefore
sustains the recommendation of the Residency
Review Committee.

The ACGME accepted the decision of the appeals panel and withdrew

McKeesport's accreditation.

It appears from the record that the ACGME went by the

book in withdrawing McKeesport's accreditation. It followed all

the procedures outlined in the Manual and specified the

requirements in the Essentials that the hospital had failed to

meet. Despite this, the district court concluded that the

procedures were inadequate and that the ACGME's decision was

"arbitrary and capricious and not supported by substantial

evidence."

consistent follow-up on the part of the senior
resident.

4. Deficiencies in operative experience are well
documented in the area of vascular, pancreas,
endocrine, trauma, pediatric, and head and neck
surgery. There is by contrast a great sufficiency of
cases as first assistant. Instances that are mentioned
above need to be reemphasized because of the poor
record keeping; it is impossible to discern whether a
resident has done a case on a private patient or not
and, also, there is no evidence that the Program
Director, follows the cases done by the residents
carefully, thereby being able to even out the total
experience of the residents. There may be adequate
cases documented for one resident, while his
counterpart in the same year may have a dearth to none
of such cases.

32
 B. Procedural Due Process

The appropriate level of procedural safeguards to

satisfy due process depends upon a balancing of the factors

enumerated in Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.

893, 903, 47 L. Ed. 2d 18 (1976): 1) the private interest at

stake, 2) the government's countervailing interest, and 3) the

risk of an erroneous deprivation of the private interest through

procedures used, and the probable value, if any, of additional or

substitute procedural safeguards.

Although McKeesport has a protectable property interest

in its license to conduct a surgical residency program, the

interest is probably not very strong. Withdrawal of the

program's accreditation will affect only one part of the

hospital's operations; indeed it will affect only one of many

residency training programs the hospital maintains. Although the

hospital may lose some federal funding, the ACGME's withdrawal of

accreditation will not force McKeesport to close its doors. In

any event, the hospital may reapply for accreditation if it

remedies the deficiencies in its surgical residency program.

By contrast, the ACGME has a significant interest as an

accreditation agency in ensuring that the residents in general

surgery are adequately trained. Accreditation of a surgical

residency program in effect certifies to society that those who

were trained in the program are fit to be surgeons. Consistent

with this interest, the procedures the ACGME currently has in

place are quite detailed. As has been mentioned, the procedures

the ACGME employed included 1) notice to McKeesport that its

33
accreditation status was in jeopardy, 2) an initial review of the

program which included a site visit, 3) reconsideration of the

review in which McKeesport was allowed to present new evidence,

and 4) review before a separate appeals panel at which McKeesport

was represented by counsel, and was provided an opportunity to

present witnesses, question members of the RRC, and present

additional evidence.

The district court believed that these accreditation

procedures did not satisfy procedural due process because they

employed vague standards, gave McKeesport inadequate notice,

placed undue emphasis on past violations, and did not allow

cross-examination. I do not believe that any of these supposed

defects are supported by the evidence or would in any event

constitute a denial of McKeesport's due process rights. Curing

these asserted defects would do little to decrease the risk of an

erroneous withdrawal, and any additional procedures would seem to

be of negligible worth when compared to their cost.

First, the district court thought two requirements in

the Essentials, the "substantial compliance" and "operative

experience" ones, were vague. In contrast to the district court,

I believe that the formulation of these requirements preserved

the ACGME's ability to exercise its professional judgment in

making accreditation decisions. More particularly, the ACGME was

entitled to make a conscious choice in favor of flexible

standards to accommodate the variations among its member

institutions, and to avoid forcing all programs into a rigid

mold. See St. Agnes II, 748 F. Supp. at 339; Rockland Inst.,

34
Div. of Amistad Vocational Schools, Inc. v. Association of Indep.

Colleges & Schools, 412 F. Supp. 1015, 1018 (C.D. Cal. 1976);

Parsons College, 271 F. Supp. at 73. Although the incorporation

of professional judgment into a professional standard may prevent

program directors from predicting with mathematical precision

what will or will not satisfy the standard, it does not make the

standard unconstitutionally vague, particularly where, as here,

experienced program directors can develop a good sense of how

that judgment is commonly exercised.

Second, despite the district court's conclusion to the

contrary, the ACGME gave McKeesport adequate notice of its

alleged deficiencies. On several occasions, the ACGME sent

McKeesport detailed letters of notification stating the areas in

which McKeesport needed improvement. After ACGME notified

McKeesport of the withdrawal, McKeesport again received a

detailed notice of the RRC's evaluation. It was even notified of

specific concerns of the RRC and the appeals panel, and was

allowed to submit additional information to address those

concerns. Such notification procedures were not constitutionally

infirm.

Third, the district court's conclusion that it was

unfair for the RRC to consider the history of the program when

making its decision while the appeals panel would not consider

changes in the program following the RRC's decision, reflects an

erroneous view of the different functions performed by the RRC

and the appeals panel. In the ACGME's accreditation process, the

RRC makes the original substantive decision with respect to the

35
accreditation. At that stage, it seems perfectly appropriate to

take into account past performance as a predictor of future

performance. However, at the appeals stage, which is designed

only to ensure that the RRC acted properly, subsequent changes to

the program are irrelevant. Thus there is no unfair asymmetry in

preventing the program director from presenting evidence of

changes in the program following the RRC decision. It is based

upon the acceptable policy decision to fix the accreditation

decision at a certain point in time so that the ACGME can make a

concrete assessment of the program and not face a moving target.

Fourth, the district court's conclusion that the

procedures were infirm because McKeesport could not cross-examine

and confront the RRC reviewers overstates the constitutional

requirement of "adequate notice and an opportunity to be heard by

an appropriate tribunal." St. Agnes II, 748 F. Supp. at 337

(internal quotations omitted). The Constitution requires a

proceeding appropriate under the circumstances; it does not

require confrontation and cross-examination in every proceeding.

See also Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545,

105 S. Ct. 1487, 1495, 84 L. Ed. 2d 494 (1985) (stating that a

pretermination hearing need not be elaborate and that notice and

an opportunity to respond are the critical components).

Cross-examination and confrontation, which are

generally procedures aimed at resolving questions of historical

fact that may turn on the credibility of the participants, are

not absolutely necessary in a procedure related to accreditation

decisions like the one here. The ACGME's proceeding is aimed at

36
the application of a standard of quality in a field of medical

education. In this case, as in most cases, the facts were

essentially undisputed. While the effect that such facts might

have on the accreditation decision were in dispute, this

determination was largely a question of professional judgment,

rather than of credibility. Confrontation and cross examination

would have added little to that determination. Thus the lack of

such procedures did not deny McKeesport procedural due process.0

In short, none of the reasons cited by the district

court supports the conclusion that McKeesport was likely to

succeed on the merits of its procedural due process claim. At

bottom, McKeesport's claim that the ACGME's procedures violate

constitutional requirements of due process really rests on the

proposition that procedures which allow an accrediting body to

exercise its professional judgment when reaching its decisions

violate constitutional standards of due process. But insofar as

the ACGME's professional judgment is the most important tool it

0
Two of the court's other findings, that an inadequate amount of
time was allotted in the RRC hearing for consideration of
individual cases and that the ACGME's procedures disregarded the
site surveyors' findings, are potentially problematic. Under the
current ACGME review procedures, only two reviewers carefully
evaluate the program. Although their results are then reported
to the RRC along with a number of other reviews of programs, the
full membership of the RRC relies on their notes and appears to
give only perfunctory review to each individual program (50 to 70
programs are reviewed during a single day-and-a-half session).
Similarly, the site surveyor, who has in-depth knowledge of the
program, cannot make recommendations about accreditation. The
decisions to limit the review by the RRC of individual programs
and to limit the role of the site surveyor, however, reflect the
ACGME's exercise of its judgment as to the procedures appropriate
for the review of programs, something that I would not lightly
disturb.

37
has to ensure the quality of residency programs, that proposition

cannot be correct.

C. Substantive Due Process

The district court's conclusion that the ACGME violated

substantive due process in its review of McKeesport is also

flawed. The court's conclusion was based on random entries in

site surveyors' reports and comments from the RRC reviewers who

reconsidered the adverse action. In particular, the court

pointed to comments by site surveyors to the effect that the

ACGME tended "to come down strong" on community hospital programs

(McKeesport is a community hospital), and that the ACGME was

hostile to programs with large numbers of foreign doctors.0 The

district court also found that, by the time the appeals panel

considered McKeesport's program, every claimed deficiency except

for McKeesport's lack of scholarly activity had been remedied or

had been deemed insupportable by the evidence.

0
The conclusion that the ACGME is biased against foreign trained
doctors is apparently based on an isolated statement in the
record from a state observer that the ACGME "sees with a
jaundiced eye the inclusion of foreign medical graduates in
residency programs." There is otherwise little or no support for
such a finding. Nevertheless, it is a matter of common knowledge
that nearly every hospital in the United States (teaching and
non-teaching) has a significant number of such doctors, and yet
most teaching hospitals have satisfied the ACGME requirements.
Moreover, the notion that ACGME is biased against community
hospitals lacks significant record support. But whether or not
the district court's findings were correct on this issue, the
ACGME's findings were otherwise supported by enough evidence that
I do not believe that the ACGME ran afoul of substantive due
process.

38
 But the existence of some evidence contrary to the

ACGME's decision does not mean that the decision was not

supported by substantial evidence. Courts must pay special

deference to a professional accreditation organization's

substantive decisions in light of the special expertise required

to determine professional competency. See Marjorie Webster

Junior College, Inc. v. Middle States Ass'n of Colleges and

Secondary Schools, Inc., 432 F.2d 650, 655 (D.C. Cir. (1970),

cert. denied, 400 U.S. 965, 91 S. Ct. 367, 27 L. Ed. 2d 384

(1970). And the record shows that the ACGME very carefully

reviewed the program and found substantial support for at least

four of the five deficiencies.

Following its review of the McKeesport program in 1989,

the RRC expressed "serious concern" in five areas and stated that

the next survey would occur in one year. It is undisputed that

during the 1990-91 review the program director submitted

incorrect information to the RRC. It is also not seriously

disputed that there was substantial evidence to support the

ACGME's finding that McKeesport has a deficient level of

scholarly activity: the ACGME repeatedly complained about

McKeesport's lack of adequate scholarly activity, particularly

its lack of peer-reviewed journal articles, and McKeesport does

not seriously contend otherwise.

The ACGME also had substantial evidence to support its

finding that there were deficiencies in surgical experience at

McKeesport. Although the Essentials does not set forth a precise
number of required operations, the numbers of vascular, pancreas,

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endocrine, trauma, pediatric, and head and neck operations at

McKeesport were known, and the most recent data had shown that

the McKeesport program was unable to provide adequate experience

in six of the thirteen major categories of surgery. Of the two

McKeesport graduates, one was deficient in seven of the defined

categories, and the other in four. In the ACGME's professional

judgment, McKeesport's program did not have the "breadth, depth,

complexity, and volume to sustain an adequate experience for two

residents, and that each of these residents did not have what

[the ACGME] would accept as a broadly based surgical experience."

This conclusion was within the ACGME's competence to decide and

was not arbitrary and capricious.

In view of the supported ACGME conclusions about

scholarly activity and surgical experience, both of which it

considers important criteria for program certification, I am

satisfied that McKeesport had no probability of success on the

merits of the substantive due process claim.0

D. Common Law Due Process

0
Because I believe that McKeesport has not shown a likelihood of
success on the merits, I need but briefly discuss the balance of
the harms, but that consideration also militates in favor of
setting aside the district court's injunction. To begin with,
the balance of harms does not clearly favor McKeesport since the
ACGME, and the state, have a strong interest in maintaining the
quality of surgeons, and a grant of a preliminary injunction
would compromise that interest. Moreover, because the public
interest in having qualified surgeons is a strong interest
weighing in the ACGME's favor, I believe that McKeesport would
have had to make a very strong showing of likelihood of success
in order to be entitled to a preliminary injunction, something it
clearly did not do.

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 McKeesport's complaint averred only a violation of

constitutional due process. It appears, however, that McKeesport

could have also claimed a violation of common law due process (as

it now seeks leave to amend to do). Many courts have recognized

a state or common law duty on the part of "quasi-public" private

professional organizations or accreditation associations to

employ fair procedures when making decisions affecting their

members. See Wilfred Academy of Hair & Beauty Culture v.

Southern Ass'n of Colleges & Schools, 957 F.2d 210, 214 (5th Cir.

1992); Medical Inst. of Minn. v. National Ass'n of Trade & Tech.

Schools, 817 F.2d 1310, 1313 (8th Cir. 1987); Marlboro Corp. v.

Association of Indep. Colleges & Schools, Inc., 556 F.2d 78, 79

(1st Cir. 1977); Marjorie Webster Junior College, Inc. v. Middle

States Ass'n of Colleges and Secondary Schools, Inc., 432 F.2d

650, 655 (D.C. Cir. (1970), cert. denied, 400 U.S. 965, 91 S. Ct.

367, 27 L. Ed. 2d 384 (1970); Peoria School of Business, Inc. v.

Accrediting Council for Continuing Educ. & Training, 805 F. Supp.

579, 582 (N.D. Ill. 1992); St. Agnes II, 748 F. Supp. at 338;

Interfaith Med. Ctr. v. Sabiston, 136 A.D.2d 238, 242-43, 527

N.Y.S.2d 48, 50-51 (App. Div. 1988). Such a common law duty

appears to exist under Pennsylvania law. See School Dist. v.
Pennsylvania Interscholastic Athletic Ass'n, 309 A.2d 353, 357

(Pa. 1973); Psi Upsilon of Philadelphia v. University of Pa., 591

A.2d 755, 758-59 (Pa. Super.), appeal denied, 598 A.2d 994 (Pa.

1991); Boehm v. University of Pa. School of Veterinary Medicine,

573 A.2d 575, 579 (Pa. Super.), appeal denied, 589 A.2d 687 (Pa.
1990). Importantly, unlike the constitutional due process cause

41
of action, the common law due process cause of action has no

state action requirement. See St. Agnes II, 748 F. Supp. at 337-

338.

McKeesport avers that it should be given the

opportunity to seek leave to amend its complaint to assert a

common law due process claim. I note, however, that the

requirements of common law due process are quite similar to those

for constitutional due process, and most courts treat them

interchangeably. See, e.g., Marlboro Corp., 556 F.2d at 79; see

also North Jersey Secretarial School, Inc. v. National Ass'n of

Trade & Tech. Schools, 597 F. Supp. 477, 479-80 (D.D.C. 1984)

(stating that accrediting associations owe its members a duty to

provide fair and impartial procedures, to base decisions on

substantial evidence, and to avoid arbitrary and capricious

actions), vacated without op., 802 F.2d 1483 (D.C. Cir. 1986).

Thus, because I believe that McKeesport cannot make out a claim

for violation of constitutional due process, I doubt that it will

be able to succeed on a claim for violation of common law due

process either, though I acknowledge that the question should be

addressed by the district court in the first instance.

III. Conclusion
While I believe the ACGME is a state actor, I also

believe that it satisfied the requirements of procedural and

substantive due process, and consequently, McKeesport had no

likelihood of success on the merits. Because I too would reverse

42
the order granting the preliminary injunction, I concur in the

judgment of the court.

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