Doe v. Nat'l Bd. Med. Examiners ( 1999 )


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  •                                                                                                                            Opinions of the United
    1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                                  for the Third Circuit
    
    
    12-8-1999
    
    Doe v Nat'l Bd. Med. Examiners
    Precedential or Non-Precedential:
    
    Docket 99-1877
    
    
    
    
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    Recommended Citation
    "Doe v Nat'l Bd. Med. Examiners" (1999). 1999 Decisions. Paper 318.
    http://digitalcommons.law.villanova.edu/thirdcircuit_1999/318
    
    
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    Filed December 9, 1999
    
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    
    No. 99-1877
    
    JOHN DOE
    
    v.
    
    NATIONAL BOARD OF MEDICAL EXAMINERS,
           Appellant
    
    On Appeal From the United States District Court
    For the Eastern District of Pennsylvania
    (D.C. Civ. No. 99-cv-04532)
    Magistrate Judge: Honorable M. Faith Angell
    
    Argued: November 23, 1999
    
    Before: BECKER, Chief Judge, SCIRICA, and ALITO,
    Circuit Judges.
    
    (Filed December 9, 1999)
           GABRIEL L.I. BEVILACQUA,
            ESQUIRE (ARGUED)
           J. CLAYTON UNDERCOFLER,
            ESQUIRE
           JAMES F. KILCUR, ESQUIRE
           LISA GALANTE BLACKBURN,
            ESQUIRE
           JEFFREY M. VIOLA, ESQUIRE
           Saul, Ewing, Remick & Saul, LLP
           Centre Square West
           1500 Market Street, 38th Floor
           Philadelphia, PA 19102
    
           Counsel for Appellant
    
           ROBERT M. BRUSKIN, ESQUIRE
            (ARGUED)
           RACHEL L. STRONG, ESQUIRE
           Howrey & Simon
           1299 Pennsylvania Avenue, N.W.
           Washington, DC 20004
    
           STEPHEN F. GOLD, ESQUIRE
           125 South 9th Street, Suite 700
           Philadelphia, PA 19107-5120
    
           E. ELAINE GARDNER, ESQUIRE
           LOIS G. WILLIAMS, ESQUIRE
           Washington Lawyers' Committee for
            Civil Rights and Urban Affairs
           11 Dupont Circle, N.W., Suite 400
           Washington, DC 20036
    
           Counsel for Appellee
    
    OPINION OF THE COURT
    
    BECKER, Chief Judge.
    
    John Doe is a medical student who has multiple
    sclerosis. The National Board of Medical Examiners (NBME)
    provided testing accommodations to Doe when he took Step
    1 and Step 2 of the United States Medical Licensing
    Examination (USMLE), as it concedes it is required to do
    
                                   2
    under Title III of the Americans with Disabilities Act
    ("ADA"), Pub.L. 101-336, Title III, 42 U.S.C.S 12181 et seq.
    (19__). The accommodations provided included extra time to
    complete each examination. The NBME annotates the
    scores of examinees who receive testing accommodations if,
    in its judgment, the accommodations affect the
    comparability of the accommodated score to non-
    accommodated scores. The NBME follows this practice
    because it believes that it owes a duty of candor to the
    users of USMLE scores to disclose factors that may affect
    the meaning of an examinee's scores. Although the USMLE
    was designed as a licensing examination, at the request of
    examinees, the NBME will send Step 1 and Step 2 scores to
    hospitals sponsoring residency and internship programs for
    use in evaluating candidates for admission to their
    programs. Examinees typically make such requests. Doe
    claims that, as applied to him, the NBME's practice of
    flagging accommodated scores violates Title III of the ADA.
    
    Doe is currently in the process of applying for residencies
    and internships in physical medicine and rehabilitation. He
    brought suit in the District Court for the Eastern District of
    Pennsylvania seeking to enjoin the NBME from annotating
    his scores to reflect that he received testing
    accommodations. By consent of the parties, Doe's motion
    for a preliminary injunction prohibiting the NBME from
    annotating his scores was assigned to a Magistrate Judge
    (hereafter the District Court). After a three-day hearing, the
    District Court granted the motion, holding that Doe had
    standing to sue, that he had demonstrated a reasonable
    likelihood of success on his claim that annotating his
    scores violated section 302 of the ADA, and that he had
    demonstrated that he would be irreparably harmed absent
    an injunction. This expedited appeal followed (Doe must
    send his scores to the residency programs soon if he is to
    be seriously considered in the matching process that will
    take place in early 2000).
    
    The critical questions on appeal are (1) whether Doe has
    standing to sue; (2) what section of Title III of the ADA
    governs Doe's claim; (3) whether the very act of annotating
    Doe's scores violates the ADA; and (4) whether Doe has
    proven that the additional time did not affect the
    
                                   3
    comparability of his scores to non-accommodated scores,
    and thus that the flag imposes an inequality on him. We
    conclude that, although flagging sufficiently injures Doe to
    surmount the NBME's argument that Doe lacks standing to
    sue, flagging does not constitute an ipso facto violation of
    Title III of the ADA. In so doing, we conclude that section
    309 of Title III, 42 U.S.C. 12189 (19__), the section
    specifically governing examinations, and not section 302,
    42 U.S.C. 12182 (19__) the general provision on
    discrimination in public accommodations, controls this case.1
    
    We also conclude that, in order to demonstrate a
    reasonable likelihood of success on his claim under section
    309, Doe bore the burden of showing that his scores were
    comparable to non-accommodated scores in terms of
    predicting his future success, and that he failed to meet
    this burden. The District Court's conclusion that Doe had
    demonstrated a reasonable likelihood of success on his
    claims under Title III of the ADA thus was unsupported by
    the evidence Doe presented and the factual conclusions the
    Court reached. Accordingly, we hold that the District Court
    abused its discretion in determining that Doe had shown a
    reasonable likelihood of success on the merits, and we
    vacate the order granting the preliminary injunction.
    
    I. Facts & Procedural History
    
    The NBME, together with the Federation of State Medical
    Boards of the United States, Inc., offers the USMLE. The
    USMLE is a standardized multiple-choice test administered
    in three parts, or "Steps". The USMLE was designed as a
    licensing exam meant to assess an examinee's
    understanding of, and ability to apply, concepts and
    principles that are important in health and disease and
    constitute the basis of safe and effective patient care. In
    order to obtain a license to practice medicine in the United
    States, an examinee must obtain a passing score on all
    three Steps of the USMLE. Prior to May 1999, the USMLE
    _________________________________________________________________
    
    1. As the District Court applied section 302, we also briefly consider
    whether the general requirements in section 302 unsettle our conclusion
    that Doe has not demonstrated a reasonable likelihood of success on the
    merits and conclude that they do not.
    
                                    4
    was provided in a written format. Since May 1999, the
    USMLE has been given in a computerized format. After an
    examinee takes the USMLE, the NBME sends a score report
    to the examinee. Although the USMLE was designed for use
    as a licensing exam, it is common practice for residency
    and fellowship programs to use USMLE test scores in
    evaluating candidates for admission to their programs. At
    an examinee's request, the NBME will send a USMLE score
    transcript to third parties designated by the examinee,
    including residency and internship programs and state
    licensing authorities.
    
    When examinees with disabilities apply to take the
    USMLE, they can request that the NBME provide testing
    accommodations. An examinee must support such a
    request with evidence that he is disabled and that a
    particular accommodation is an appropriate
    accommodation for his disability. Examples of
    accommodations that the NBME has provided in the past
    include large type, assistance filling in answer sheets, and
    extra time.
    
    When an examinee is granted a testing accommodation of
    extra time, the NBME flags the examinee's transcript of
    scores with the statement "Testing Accommodations" on the
    front of the transcript and a comment on the back of the
    transcript stating: "Following review and approval of a
    request from the examinee, testing accommodations were
    provided in the administration of the examination." The
    NBME flags only those testing accommodations that its
    experts conclude may affect the validity of a score. For
    example, an accommodation providing a test in large print
    would not be flagged. The NBME flags scores obtained
    under extra time accommodations because its
    psychometricians have concluded that scores obtained with
    extra time accommodations may not be comparable to
    scores obtained under standardized conditions.2 In such
    _________________________________________________________________
    
    2. According to the testimony of one of the experts, psychometrics is "a
    sub-discipline within quantitative psychology, that looks at testing and--
    the usefulness of tests, generally and other predictive variables. [ ]
    Psychometrics, generally, includes the techniques that are used to build
    tests and then evaluate those tests, once built."
    
                                   5
    circumstances, according to the NBME, the extra time may
    under- or overcompensate for the test-taker's disability.
    
    John Doe currently is a fourth-year medical student at
    the Medical College of Virginia. He was diagnosed with
    multiple sclerosis in the summer of 1987, when he was in
    college. Doe's condition causes muscular spasticity,fine
    motor problems, urgency of the bowel and bladder, and
    occasional incontinence. Doe does not have any learning
    disabilities, and his multiple sclerosis does not affect his
    cognitive abilities. The type, frequency, and duration of
    symptoms that Doe experiences vary and are unpredictable.
    The parties agree that Doe is disabled within the meaning
    of the ADA.
    
    When Doe applied to the NBME to take Step 1 of the
    USMLE, he completed a NBME questionnaire in order to
    request testing accommodations. On that questionnaire,
    Doe informed the NBME that he had a physical disability.
    After several communications between the NBME and Doe
    in which Doe refused lesser accommodations, the NBME
    provided the following accommodations for Doe's Step 1
    examination: (1) time and one half to take the examination;
    and (2) a special seating assignment close to the restroom.
    Doe requested these accommodations because his condition
    can require him to stop and stretch his muscles frequently,
    taking many "micro-breaks," and to visit the restroom
    often. Doe concedes that it is possible for him to continue
    considering questions on the exam while he takes these
    breaks.
    
    Doe's score report for Step 1 of the USMLE contained an
    annotation that Doe received testing accommodations for
    the examination. After he received the scores, Doe wrote to
    the NBME and requested that it remove the annotation
    from his scores. The NBME denied Doe's request. When
    Doe applied to take Step 2 of the USMLE, he again
    requested testing accommodations from the NBME.
    Although Doe only requested time and a half for Step 2, the
    NBME provided Doe with double time. It did so because the
    computerized version of the test, which is the version of
    Step 2 Doe was applying to take, is designed so that the
    only available extra time accommodation is double time.
    
                                   6
    The NBME expects to report Doe's Step 2 scores sometime
    in December of this year.
    
    Doe has sent flagged Step 1 scores to some, but not all,
    of the physical medicine and rehabilitation residency and
    internship programs to which he is applying. He has been
    offered interviews at some of the programs to which he
    applied, which review applications and make decisions
    regarding interviews on a rolling basis.
    
    A flagged score effectively indicates to anyone familiar
    with the NBME's policies regarding flagging that the
    examinee has a disability of some sort, because only
    disabled people receive testing accommodations. The NBME
    will respond to inquiries from third parties who have
    received annotated scores regarding the nature of the
    accommodation provided, but it will not release information
    regarding the disability for which the accommodation was
    given. In Doe's case, it would inform residency and
    internship programs who made inquiries about theflag that
    Doe received extra time on his examinations, but it would
    not reveal to the programs that Doe has multiple sclerosis.
    
    The District Court found that the NBME had not shown
    that it must flag the scores of accommodated examinees in
    order to secure the psychometric soundness of the USMLE.
    Significantly, however, the Court declined to conclude
    whether it is possible to determine psychometrically if the
    score of a candidate who received an accommodation of
    extra time is better than, worse than, or the same as the
    same score for a candidate who took the exam under
    standardized conditions.
    
    Tests vary along a continuum in the extent to which they
    are "power" or "speeded" tests. A purely power test
    measures an examinee's knowledge of the subject of the
    exam with no time constraints. A purely speeded test
    measures the time in which an examinee can complete
    ministerial tasks. The USMLE exams are primarily power
    tests, but they have a speeded component as well. Some
    25% of examinees have reported that they felt that they
    could have benefitted from more time on the examination.
    There was conflicting expert testimony regarding the
    comparability of time-accommodated scores to scores
    
                                   7
    achieved under standard conditions. The NBME's experts
    testified to a lack of evidence of comparability. For example,
    Dr. Mehrens testified that "[a]lthough research has
    suggested that accommodated scores tend to overpredict
    [success], research has certainly not informed us regarding
    the exact probability" of error in comparing accommodated
    and non-accommodated test scores. Doe's expert, Dr.
    Geisinger, testified that providing extra time to individuals
    with disabilities leads to results comparable to tests taken
    under standard conditions; he acknowledged, however, that
    it would be difficult to determine whether Doe received any
    advantage from the extra time accommodation. As noted
    above, the District Court declined to make a finding of
    comparability on this evidence.
    
    Doe believes that he will be discriminated against by
    residency and internship programs if he submits flagged
    scores. He testified at the preliminary injunction hearing,
    however, that he did not know whether individuals at the
    programs to which he had applied had any concerns about
    admitting persons with disabilities. He also testified that he
    had not been told that he would be denied admission to
    any program because of the annotation or because of his
    disability.
    
    Pressed at oral argument to identify evidence supporting
    Doe's belief, Doe's counsel offered three bases in support of
    the assertion that the programs to which Doe has applied
    will discriminate against him. First, he offered Doe's own
    experience. In 1988, Doe took admission examinations for
    both medical school and law school. He was accepted to
    one of the two medical schools to which he applied as well
    as to law school, and he decided on the law. After
    completing law school and practicing law with prestigious
    law firms for five years, he decided to reapply to medical
    school. The second time around, he applied over the course
    of two years and was accepted to only one of the thirty-two
    medical schools to which he applied.
    
    Doe argues that the comparison between his experience
    applying to medical school directly from college, where his
    scores on the medical school admissions exam were not
    flagged and he was accepted at 1 of the 2 schools to which
    he applied, and his experience applying to medical school
    
                                   8
    after practicing law for several years, where his scores were
    flagged and he was accepted to 1 of the 32 schools to which
    he applied, is evidence that residency and internship
    programs will discriminate against him. He did not,
    however, present any evidence of the relative selectivity of
    the schools to which he applied the first and the second
    time (which could explain the result), or evidence regarding
    his grades and tests scores as compared to other applicants
    against whom he was competing the first and second time
    he applied, or evidence that his success rate was lower the
    second time he applied because of the flag rather than as
    a result of some other factor--such as the possibility that
    he was a less attractive candidate for medical school the
    second time because he had practiced law for five years. He
    also did not present any evidence that residency and
    internship programs would be likely to respond to his
    application the same way that medical schools responded.
    
    Second, Doe's counsel cited testimony by Dr. Geisinger,
    Doe's expert, that he believed that some programs might
    discriminate against Doe on the basis of his disability. More
    specifically, Dr. Geisinger stated that he believed some
    small programs might discriminate against disabled
    candidates because of the potential cost of accommodating
    a disabled resident, citing a study by Warren W.
    Willingham on the testing of handicapped people. After
    offering this opinion, however, Dr. Geisinger was asked "but
    there's no research that supports anything you just said, is
    there?" He replied "I would say there is no empirical
    research."
    
    Third, Doe's counsel cited the Willingham study referred
    to by Dr. Geisinger. But the Willingham study, which did
    not involve the USMLE, is equivocal. It states both that
    "overall the selection process for handicapped applicants
    was comparable to that for the nonhandicapped in the
    sense that decisions followed quite closely what one would
    expect from HSG and SAT scores" and that "admissions
    were lower than predicted for a relatively small number of
    visually impaired and physically handicapped students
    applying to smaller institutions."
    
    The NBME opposed Doe's motion for a preliminary
    injunction by arguing that Doe lacked standing and that he
    
                                    9
    had not met the requirements for a preliminary injunction.
    The NBME also argued that the court should recognize a
    communicatory privilege protecting its good faith
    communications to users of USMLE scores.
    
    The District Court held that Doe had standing to sue the
    NBME, that he had demonstrated a reasonable likelihood of
    showing that the practice of flagging violated his rights
    under the ADA, and that he had demonstrated that he
    would be irreparably harmed absent an injunction. It
    granted Doe's motion, enjoining the NBME from annotating
    or flagging Doe's scores on Step 1 and Step 2 of the
    USMLE. The NBME appeals from the order granting the
    preliminary injunction.
    
    Pursuant to 28 U.S.C. S 636(c) (19__), an aggrieved party
    to a matter heard by a magistrate by consent of the parties
    "may appeal directly to the appropriate United States court
    of appeals from the judgment of the magistrate in the same
    manner as an appeal from any other judgment of a district
    court." This Court has jurisdiction pursuant to 28 U.S.C.
    S 1292(a)(1) (19__), which confers jurisdiction on the Courts
    of Appeals to hear appeals from interlocutory orders
    granting injunctions.
    
    II. Standing
    
    The "irreducible constitutional minimum of standing" has
    three parts: injury in fact (a concrete harm suffered by the
    plaintiff that is actual or imminent), causation, and
    redressibility. See Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992). Because these requirements are not
    pleading requirements, but are necessary elements of a
    plaintiff's case, mere allegations will not support standing
    at the preliminary injunction stage. "[E]ach element [of
    standing] must be supported in the same way as any other
    matter on which the plaintiff bears the burden of proof, i.e.
    with the manner and degree of evidence required at the
    successive stages of litigation." Id. at 561. Doe has not
    adduced evidence demonstrating more than a mere
    possibility that he will be discriminated against by
    residency and internship programs if his scores are flagged.
    Accordingly, Doe has not demonstrated standing on this
    basis.
    
                                    10
    The District Court concluded that Doe had standing
    because he "pled infringement of the right to be free from
    discrimination under the [ADA]." This formulation of
    standing ignores the requirement that, at the preliminary
    injunction stage, allegations are not enough to support
    standing, and it incorrectly equates a violation of a statute
    with an injury sufficient to confer standing. The proper
    analysis of standing focuses on whether the plaintiff
    suffered an actual injury, not on whether a statute was
    violated. Although Congress can expand standing by
    enacting a law enabling someone to sue on what was
    already a de facto injury to that person, it cannot confer
    standing by statute alone. See Lujan, 504 U.S. at 578
    (noting that Congress can "elevat[e] to the status of a legally
    cognizable injur[y] concrete, de facto injuries that were
    previously inadequate in law.").
    
    Doe has identified, however, an injury in fact that
    provides an alternative basis for standing. He has
    demonstrated that the flag on his test scores identifies him
    as a disabled person. Being so identified harms him in the
    sense that, because of his justifiable and reasonable
    concern as a disabled person with how people who can
    affect his future and his livelihood, and whose judgment
    may be informed by the information, will perceive him, he
    has actively sought to avoid being so identified. We are
    persuaded that this injury--being identified as a disabled
    person against his will--is enough to establish that Doe has
    suffered a concrete harm as a result of the NBME's policy
    of flagging accommodated scores.
    
    The jurisprudence of standing is littered with cases in
    which courts have dismissed actions because the injury
    was not personal (i.e., it accrued to third parties), or the
    injury was not concrete (i.e., it was too theoretical), or the
    injury was not actual or imminent (i.e., it was speculative),
    but that is not the case here. The injury identified is
    personal to Doe; he is not claiming an injury from
    generalized discrimination against disabled persons or
    suing on behalf of the disabled, he is claiming that it hurts
    him personally to be identified as a disabled person when
    he has explicitly stated that he does not want to be so
    identified. If his fear of discrimination were unfounded, we
    
                                   11
    might call this a purely theoretical injury (i.e., one that is
    not concrete). But because his fear is based in reality, Doe's
    injury to his interest in keeping his disability private is
    concrete. Similarly, the injury is actual/ imminent. Some of
    his score reports already have been flagged, and the others
    are sure to be flagged absent an injunction. Thus, we
    conclude that Doe has met the actual injury component of
    the constitutional standing requirement.
    
    Because the injury complained of is an injury fairly
    traceable to the NBME that would be redressed by the relief
    Doe seeks, we conclude that Doe has met the constitutional
    standing requirement.3 This conclusion, however, is
    analytically separate from the question whetherflagging in
    these circumstances constitutes discrimination under Title
    III of the ADA, to which we now turn.
    
    III. The Preliminary Injunction
    
    A. General Standards
    
    This Court reviews orders granting preliminary
    injunctions for abuse of discretion. We review underlying
    findings of fact for clear error and consider questions of law
    de novo. See Acierno v. New Castle County, 
    40 F.3d 645
    ,
    652 (3d Cir. 1994). A court abuses its discretion when its
    ruling is founded on an error of law or a misapplication of
    law to the facts. See Marco v. Accent Pub. Co., 
    969 F.2d 1547
    , 1548 (3d Cir. 1992). Accordingly, inasmuch as the
    result depends upon a question of law, namely, whether the
    practice of flagging test scores violates the Americans with
    _________________________________________________________________
    
    3. The NBME adduced some evidence that, if Doe is interviewed by a
    physician in the residency and internship programs, the physician would
    be able to tell from Doe's gait that he has some sort of neurological
    disorder. Doe has contested this evidence on the basis that he has
    successfully hid his disability in medical school. We are not persuaded
    that the NBME's evidence shows that Doe's injury would not be
    redressed by the relief he seeks. If programs that interview Doe are able
    to identify him as a disabled person on the basis of the interview, such
    would occur only after Doe already had been granted an interview. An
    annotation on his test score, by contrast, allows programs to identify
    Doe as a disabled person before they decide whether to interview him.
    
                                      12
    Disabilities Act, we exercise plenary review. See In re Assets
    of Myles Martin, 
    1 F.3d 1351
    , 1357 (3d Cir. 1993).
    
    "Four factors govern a district court's decision whether to
    issue a preliminary injunction: (1) whether the movant has
    shown a reasonable probability of success on the merits; (2)
    whether the movant will be irreparably injured by denial of
    the relief; (3) whether granting preliminary relief will result
    in even greater harm to the nonmoving party; and (4)
    whether granting the preliminary relief will be in the public
    interest." American Civil Liberties Union of New Jersey v.
    Black Horse Pike Regional Bd. of Educ., 
    84 F.3d 1471
    , 1477
    n.2 (3d Cir. 1996) (en banc). If the order granting the
    preliminary injunction is to be upheld, Doe must
    demonstrate that the District Court did not abuse its
    discretion in finding both that he had a reasonable
    probability of success on his claim that flagging his score
    violates the ADA, and that he would be irreparably harmed
    if an injunction did not issue. As we hold that Doe has not
    demonstrated a reasonable chance of success on his claim
    that flagging his scores violates the ADA, we vacate the
    order granting a preliminary injunction without reaching
    the question of irreparable harm.4
    
    B. The Specific Controls the General
    
    The District Court analyzed the "flag" under section 302
    of the ADA, which sets forth general provisions prohibiting
    _________________________________________________________________
    
    4. The NBME also argues that this Court should recognize a common law
    privilege that would protect good faith, truthful communications to state
    licensing authorities and medical residency programs. Such a privilege
    would be a defense to this suit, as with communicatory privileges within
    the law of defamation. Because of the public interest in ensuring that
    physicians are qualified to practice medicine, the NBME claims a duty to
    disclose the manner in which the USMLE was administered and the
    meaning of the resulting score. In support of this proposition, the NBME
    cites Rothman v. Emory University, 
    123 F.3d 446
    , 452 n.4 (7th Cir.
    1997), in which the court, although deciding the case on other grounds,
    observed that a claim that a law school dean's communications to state
    bar examiners were protected by a common law privilege grounded in the
    public interest in an applicant's moral character, reputation, and fitness
    for the practice of law had "exceptional force." Because Doe has not met
    his burden of showing a reasonable likelihood of success on the merits,
    we need not consider the NBME's invitation to recognize such a privilege.
    
                                   13
    discrimination in public accommodations, 42 U.S.C.
    S 12182 (19__). It failed to consider whether section 309,
    the more specific statute governing discrimination by
    providers of examinations, effectively defines the
    requirements of Title III of the ADA with regard to
    examinations.5
    
    In reviewing this decision, we begin with the ordinary
    tools of statutory construction. "[I]t is a commonplace of
    statutory construction that the specific governs the
    general." Morales v. Trans World Airlines, Inc., 
    504 U.S. 374
    , 384 (1992) (citing Crawford Fitting Co. v. J.T. Gibbons,
    Inc., 
    482 U.S. 437
    , 445 (1987)); see also Fourco Glass Co.
    v. Transmirra Products Corp., 
    353 U.S. 222
    , 228 (1957)
    ("The law is settled that however inclusive may be the
    general language of a statute, it will not be held to apply to
    a matter specifically dealt with in another part of the same
    enactment.") (citations omitted). This principle has special
    force when Congress has targeted specific problems with
    specific solutions in the context of a general statute. See
    HCSC-Laundry v. United States, 
    450 U.S. 1
    , 6 (1981) (per
    curiam). It applies "particularly when the two[provisions]
    are interrelated and closely positioned, both in fact being
    parts of" the same statutory scheme. See HCSC-Laundry,
    450 U.S. at 6. But see Varity Corp. v. Howe, 
    516 U.S. 489
    ,
    511 (1996) (rejecting argument that specific limitation on
    remedies in one provision of a statute trumped a general
    provision for remedies in another section).6
    _________________________________________________________________
    
    5. Doe also makes a claim under Title V of the Americans with
    Disabilities Act, Section 503, 42 U.S.C. S 12203 (19__). Title V prohibits
    retaliation and coercion directed at persons who have taken steps to
    oppose an act or practice or who have made a charge of illegality under
    the ADA. Because the record reflects no evidence of retaliation or
    coercion, we hold that Doe has not demonstrated a reasonable likelihood
    of success on his Title V claim.
    
    6. For the purposes of applying the "specific governs the general" canon
    of construction, it is important to distinguish between arguments
    regarding simultaneously enacted provisions of the same act, where the
    Supreme Court has found the canon to be a useful interpretive guide
    even absent a conflict between the provisions, and arguments for implied
    repeal, where the Supreme Court has sometimes found the canon to
    have force only when there is a "positive repugnancy" between two
    different statutes. See Connecticut National Bank v. Germain, 
    503 U.S. 249
    , 253 (1992) (quoting Wood v. United States, 41 U.S. (16 Pet.) 342,
    363 (1842)).
    
                                    14
    An analogous case suggests that the District Court erred
    in analyzing the case under section 302 instead of section
    309. In HCSC-Laundry, a cooperative laundry formed by a
    group of hospitals challenged a ruling of the Internal
    Revenue Service. The service denied the laundry not-for-
    profit status under the general provisions regarding not-for-
    profit organizations of section 501 of the Tax Code, because
    a more specific provision under 501 governed the not-for-
    profit status of hospitals, and the laundry did not fit within
    that provision. In holding that the laundry could not claim
    not-for-profit status under the general provision, it was
    significant to the Court that both provisions were"parts of
    501 relating to exemption of organizations from tax." 450
    U.S. at 6.
    
    Here, by analogy, both 309 and 302 are parts of Title III,
    which prohibits discrimination in public accommodations.
    We believe that the rationale of the "specific governs the
    general" canon counsels that we treat section 309 as
    Congress's specific definition of what Title III requires in the
    context of examinations. Moreover, although applying
    section 302 would not necessarily undermine limitations
    created by section 309 (neither section explicitly mentions
    flagging), it would render 309 superfluous. If section 302
    settled the question, there would have been no need to
    enact section 309. Accordingly, we conclude that section
    309 governs in this case.
    
    C. Section 309
    
    Section 309 does not explicitly bar the practice offlagging
    the test scores of examinees who have received testing
    accommodations. It provides that "[a]ny person that offers
    examinations or courses related to applications, licensing,
    certification, or credentialing for secondary or post-
    secondary education, professional, or trade purposes shall
    offer such examinations or courses in a place and manner
    accessible to persons with disabilities or offer alternative
    accessible arrangements for such individuals." 42 U.S.C.
    S 12189 (19__). The NBME concedes that this provision
    required it to accommodate Doe's disability when he took
    the exam. It argues, however, that it is not required to keep
    the provision of an accommodation secret from programs
    that use USMLE scores to evaluate candidates.
    
                                   15
    While the Department of Justice regulations interpreting
    section 309 provide a useful explication of its meaning, they
    also make no explicit mention of the practice of flagging
    accommodations. They interpret the section to require that
    
           [t]he examination is selected and administered so as to
           best ensure that, when the examination is
           administered to an individual with a disability that
           impairs sensory, manual, or speaking skills, the
           examination results accurately reflect the individual's
           aptitude or achievement level or whatever other factor
           the examination purports to measure, rather than
           reflecting the individual's impaired sensory, manual, or
           speaking skills (except where those skills are the
           factors that the examination purports to measure)." 28
           C.F.R. S 36.309(b)(1)(i) (19__).
    
    Because he cannot point to an explicit bar on the
    practice of flagging, Doe argues that the annotation unfairly
    calls into question the validity of his scores and in effect
    denies him the opportunity to take the exam "in a place
    and manner accessible" to him. Doe reads too much into
    the phrase "in a [ ] manner accessible to persons with
    disabilities." He would have us hold that the phrase "in a
    manner accessible" includes by implication the requirement
    that the resulting scores be declared psychometrically
    comparable to the scores of examinees who take the test
    under standard conditions. However, neither the language
    of the statute nor the regulation interpreting it sets forth or
    implies such a requirement.
    
    The term "accessible" is not best understood to mean
    "exactly comparable." The notion of accessibility, or best
    ensuring that examination results accurately reflect
    "aptitude or achievement level," see 28 C.F.R.
    S 36.309(b)(1)(i), does not mandate that the NBME provide
    examinations to the disabled that yield technically equal
    results; it mandates changes to examinations--"alternative
    accessible arrangements," 42 U.S.C. S 12189 (19__)--so
    that disabled people who are disadvantaged by certain
    features of standardized examinations may take the
    examinations without those features that disadvantage
    them.
    
                                    16
    This is not a case in which the NBME refused to provide
    Doe with a score. The annotation does not state that Doe's
    scores are invalid. Moreover, Doe has not adduced evidence
    that residency and internship programs would regard the
    annotation as a signal of invalidity. As the evidence
    described supra at pages 7-8 reflects, he also has not
    proven that his scores are comparable to non-
    accommodated scores, and thus that, by flagging, the
    NBME has imposed an inequality on him by treating the
    same thing differently. Indeed, the District Court explicitly
    refused to conclude that the Doe's scores are comparable:
    "the larger issue of whether, in fact, standardized scores
    and scores obtained by disabled individuals for whom time-
    related accommodations were granted are comparable in
    psychometric terms . . . need not be answered by me." Doe
    v. National Board of Medical Examiners, 
    1999 WL 997141
    ,
    at *12. The expert testimony was unanimous that it is not
    possible to know how scores of exams taken with
    accommodations compare to scores of exams taken under
    standard conditions. The annotation simply indicates that
    Doe's scores are not psychometrically comparable to the
    scores of examinees who took the test without
    accommodations.
    
    In the absence of a statutory proscription against
    annotating the test scores of examinees who receive
    accommodations, we do not view the annotation on Doe's
    score--or its implications as just described--as itself
    constituting a denial of access. If Doe were to establish
    either that his scores are psychometrically comparable to
    the scores of candidates who take the test under standard
    time conditions, or that his scores will be ignored by the
    programs to which they are reported, he might have
    demonstrated a reasonable likelihood of success on this
    claim. He has not met these evidentiary burdens. It may be
    that Doe will be able to develop a fuller record atfinal
    hearing. On the current record, however, he has not shown
    a reasonable likelihood that he will prevail.
    
    D. Section 302
    
    Although we have concluded that section 309 defines the
    requirements of the Title III of the ADA as applied to
    examinations, we also note that nothing in section 302, the
    
                                    17
    section under which the case was decided by the District
    Court, gives us reason to believe that Doe would have
    demonstrated a reasonable likelihood of success under
    section 302 if it were the appropriate section to apply.
    Section 302 provides that "[N]o individual shall be
    discriminated against on the basis of disability in the full
    and equal enjoyment of the goods, services, facilities,
    privileges, advantages, or accommodations of any place of
    public accommodation by any person who owns, leases (or
    leases to), or operates a place of public accommodation." 42
    U.S.C. S 12182 (19__). Our cases construing section 302
    hold that "[t]he plain meaning of Title III is that a public
    accommodation is a place, leading to the conclusion that
    `[i]t is all of the services which the public accommodation
    offers, not all of the services which the lessor of the public
    accommodation offers[,] which falls within the scope of Title
    III.' " See Ford v. Schering-Plough Corp., 
    145 F.3d 601
    , 612-
    13 (3d Cir. 1998); see also Menkowitz v. Pottstown Memorial
    Medical Center 
    154 F.3d 113
    , 122 (3d Cir. 1998) ("We look
    for . . . some nexus between the services or privileges
    denied and the physical place of the . . . public
    accommodation.").
    
    Assuming that the service of reporting a score is bundled
    with the service of offering the examination and thus has
    the requisite direct nexus to a public accommodation, we
    do not believe that Doe has demonstrated a reasonable
    likelihood of showing that this service has been provided to
    him in a manner that is discriminatory or unequal under
    the terms of Title III.7 The District Court held that Doe had
    _________________________________________________________________
    
    7. The NBME does not argue that the examination itself is not a public
    accommodation within the meaning of the statute, but argues that there
    is no direct nexus between the examination and the score report. Doe
    counters that the score is bundled together as a service with the exam
    itself, because no one would take the exam except to obtain a score, and
    thus that the requisite direct nexus is present. This is a forceful
    argument. Because, however, the USMLE was designed as a physician
    licensing examination to provide state medical boards with a uniform
    basis for measuring the qualifications of applicants seeking to be
    licensed as physicians, we believe that the question whether scores
    reported to residency and internship programs are a service bundled
    with the examination and thus have the requisite direct nexus to come
    within the definition of public accommodations under section 302 is
    close, but resolving the question would not affect the outcome here.
    
                                   18
    demonstrated a reasonable likelihood of successfully
    showing that flagging violates the general prohibition on
    discrimination in section 302, on the theory that the NBME
    provided Doe a service unequal to the service offered to
    other test takers. We reject this conclusion for the same
    reason that we rejected Doe's argument under section 309:
    Doe has not demonstrated that flagging his score makes
    the service that the NBME provided to him substantively
    unequal to the service it provides to other examinees. Like
    other examinees, Doe took the exam and received a score.
    Doe has not demonstrated that his score is comparable to
    the scores of candidates who take the exam under standard
    conditions and thus that flagging his score imposes an
    inequality on him.8
    
    Doe's final argument under section 302 is that identifying
    him as a disabled person violates the general prohibition on
    discrimination in section 302 because it facilitates
    discrimination against him by third parties, namely,
    residency and internship programs. There are several
    difficulties with this argument. First, there is no provision
    of Title III that explicitly requires confidentiality from
    providers of public accommodation. By way of contrast,
    Title I of the ADA, regarding disabilities and the
    employment relationship, does require employers to protect
    the confidentiality of their employees with disabilities, with
    certain specific exceptions. See 42 U.S.C.SS 12112(d)(3)(B),
    (4)(C) (19__). Second, if residency and internship programs
    were to discriminate against Doe as a result of his
    disability, such discrimination would not necessarily be
    attributable to the NBME. Finally, as noted above, Doe has
    not established that he is likely to suffer discrimination at
    the hands of residency and internship programs as a result
    of an annotation to his scores.
    _________________________________________________________________
    
    8. In addition to the general prohibition on discrimination, section 302
    sets forth five subsections containing "specific prohibitions" on
    discrimination in public accommodations. These subsections are largely
    inapposite, and none does anything to undermine our conclusion that
    Doe has not demonstrated a likelihood that he would prevail on a section
    302 claim if we were to determine that section 302 were the correct
    section under which to analyze his claim.
    
                                   19
    IV. Conclusion
    
    For the foregoing reasons, the order of the District Court
    granting a preliminary injunction will be vacated. The
    parties shall bear their own costs.
    
    A True Copy:
    Teste:
    
           Clerk of the United States Court of Appeals
           for the Third Circuit
    
                                    20