Update: On December 6, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here.

On August 21, 2012 the Supreme Court of Ohio heard oral argument in  Rayess v. Educational Commission for Foreign Medical Graduates, 2011-1933. The issue in this case is whether a written contract can exist when it is based on an application to take an examination, payment of a fee to do so, and the receipt of general informational brochures about the exam.

In 1993, Mohamed Rayess applied to take the United States Medical Licensing Exam, which is administered by the defendants. After he submitted his application and paid a fee, he received a copy of the USMLE’s bulletin and informational brochure. Rayess took the exam in September 1993 at the University of Cincinnati. He failed Part I of the exam.

Rayess sued ECFMG on a number of tort and contract theories. He claimed that the reason he failed Part I of the exam is because ECFMG failed to provide him with sufficient time to complete it, and this has deprived him of the ability to practice as an orthopedic surgeon. Rayess based this claim on a statement in the informational brochure he received regarding the time periods allotted for each portion of the test. The trial court granted judgment on the pleadings to ECFMG on all claims.  The Second District Court of Appeals reversed on the issue of the written contract only.  It found that the brochure, application and fee payment created a written contract, and Rayess was entitled to prove this claim.  Read the oral argument preview of this case here.

The Oral Argument

Counsel for the Commission argued that Rayess was trying to do by contract what can only be done by license, and that if he were successful, other test takers will try and get a license this way. A finding in favor of Rayess would open the floodgates to disgruntled test takers—imagine law students who flunk the bar exam, for example, having 15 years to file suit for that.  Practicing medicine in Ohio is a privilege, not a right.  Rayess has only himself to blame for not getting the full three hours to complete Part I of the examination—he did not get to the test on time for his credentialing to be completed and still have the full amount of time for the test.  His chair was available for three hours. He’d tried before and knew the rules. Finally, counsel for ECFNG argued repeatedly that there was no contract here. The Commission can’t enter into contracts with examinees or promise them anything since it doesn’t have the power to bind the state.  The Commission’s sole role here was to reserve a seat for applicants to take this test.

Rayess appeared pro se.  Justice Pfeifer complimented him on his lawyering skills.  (“Thanks, he said, but I’d rather stay in medicine”).  He disputed the fact that he was late, or that it was his fault that his paperwork wasn’t in order, and was severely critical of the way he was treated during the test.  He claims he was shorted 70 minutes in Part I.  He argued that his application, payment of a fee, and the informational brochure created a contract—offer, consideration, and acceptance.

Contract or No Contract?

Justice O’Donnell asked the nature of the relationship between Rayess and the Commission. Was it contractual? Was it in any way analogous to a handbook between a university student and a public university? Couldn’t the brochure be seen as an offer to take the test and the payment of the fee consideration and an acceptance? What was Rayess supposed to get for the money he paid? Later, he asked Rayess exactly which documents he contended made up the contract. Had Rayess attached all those documents to his complaint as the rule requires? (answer: yes).

Justice Cupp asked whether the first issue was whether or not there was a contract—an issue not resolved by granting judgment on the pleadings.

Justice Lanzinger wanted to know if there was anything in the informational brochure that says “this is not a contract and should not be taken as such?”

Chief Justice O’Connor asked what would happen if Rayess had paid his money and the Commission had refused to give him the test.  Wouldn’t that be a breach of contract?

What was in the Brochure?

Justice O’Donnell wanted to know if the brochure stated there were three hours to complete Part I of the test.

My favorite exchange of the day

Justice Cupp asked counsel for the Commission, if this isn’t a contract, what is it???? It has to be something, he said.

Answer: Reservation of a chair and the chance to take the test.

Who’s Fault Was it that the Applicant didn’t have the full three hours for Part I?

Chief Justice O’Connor asked if it was the Commission’s position that it was Rayess’ own fault that he didn’t get three hours for Part I (answer-yes). Justice Cupp asked if this was in the record.

Justice O’Donnell asked how much Rayess was shorted. (The Commission says 7-8 minutes; Rayess contends it was 70 minutes).

Why are we Arguing About the Merits?

Justice Pfeifer asked what the merits had to do with the issue at hand–was there a contract or not? When counsel for the Commission argued that this would have wide ramifications for test administrators, and a chilling effect on the licensing process, he said, sharply, “oh, come on…”

Chief Justice O’Connor also commented that the merits would be decided later.  Wasn’t this about whether he can make a case in the trial court?

Even though the merits clearly weren’t before the Court, Justice O’Donnell wanted to know why Rayess didn’t get the full three hours, and how much time he did get.  Wandering even further afield, Justice Pfeifer asked Rayess what he was doing now.

And Oh, those Damages!

Justice Stratton, who seemed the most hostile to Rayess’ claim, asked why he was claiming damages were years  of lost income—why weren’t his damages just the right to re-take the test? She later asked counsel for the Commission whether there was anything preventing Rayess from starting the process again (answer-no, he has had the chance to take the test about 40 times in the last 19 years since incident occurred—OUCH!)

How it Looks From the Bleachers

It is always difficult for a lawyer to have a pro se opponent, and at the Supreme Court level, where it is a rarity, it is especially so. Judges aren’t supposed to bend over backward to favor those who appear pro se. But they can seem to, as they did in this case. Other than Justice Stratton, the justices who asked most of the questions seemed much harder on the Commission’s lawyer than on Mr. Rayess.  It looks as though a majority is going to find that the combination of the informational brochure, the payment of a fee, and the application did constitute a written contract.  So Rayess is likely to get the right to sue, but it seems unlikely that he will prevail on the merits.  Even if he does, there is no way he is going to be able to prove years of lost earnings—the best he is likely to win is  the right to be re-tested for free. And there is clearly a best practices message here, telegraphed by Justice Lanzinger.  For those in this line of work, best  re-write brochures to state in bold:  This is Not a Contract!

One final point.  I noted in the oral argument preview that almost all the documents in this case, including the decision of the Second District Court of Appeals, were filed under seal.  Based solely on the oral argument, there was absolutely no apparent reason was this should be so.

Here’s student contributor Greg Kendall’s take:

The defendant’s case is based heavily on a slippery slope argument, and the Court seems unpersuaded by the argument that this will open the door to a multiplicity of contract claims by disgruntled test takers. Chief Justice O’Connor seems to think there is a relationship between the test taker and testing center that could be contractual. Justice O’Donnell is not convinced that a contract can be found in the large number of documents Rayess argues constitute the contract.