David Rawdin v. American Board of Pediatric

Filing

NOT PRECEDENTIAL OPINION Coram: SMITH, VANASKIE and SHWARTZ, Circuit Judges. Total Pages: 10. Judge: SHWARTZ Authoring.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4544
_____________
DAVID RAWDIN, M.D.,
Appellant
v.
THE AMERICAN BOARD OF PEDIATRICS
______________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-06781)
District Judge: Hon. Juan R. Sanchez
______________________
Argued: July 8, 2014
______________________
Before: SMITH, VANASKIE, and SHWARTZ, Circuit Judges
(Opinion Filed: September 3, 2014 )
______________________
OPINION
______________________

Robert F. Morris [ARGUED]
Joshua J. Knepp
Morris & Clemm
527 Plymouth Road
Suite 416
Plymouth Meeting, PA 19462
Counsel for Appellant David Rawdin

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Sangjoon Han [ARGUED]
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
Anthony J. Sun
Covington & Burling
620 Eighth Avenue
New York, NY 10018
Counsel for Amicus The American Association of People with Disabilities; The
Association on Higher Education And Disability; The Bazelon Center For Mental
Health Law; The Council of Parent Attorneys and Advocates; Disability Rights
Advocates; Everyone Reading Inc.; Eye To Eye Inc.; The International Dyslexia
Association; The National Council On Independent Living; The National
Disability Rights Network; and The Center For Law and Education
Jennifer L. Eichhorn [ARGUED]
Mark L. Gross
Teresa Kwong
United States Department of Justice
Civil Rights Division, Appellate Section
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus United States
Christopher B. Sullivan [ARGUED]
Price Parkinson & Kerr
5742 West Harold Gatty Drive
Salt Lake City, UT 84116
Jeffrey P. Bates, Esq.
Abrahams, Loewenstein & Bushman
Three Parkway, Suite 1300
16th & Cherry Streets
Philadelphia, PA 19103
Douglas P. Farr, Esq.
Snell & Wilmer
15 West South Temple
Suite 1200
Salt Lake City, UT 84101

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Samantha L. Kane, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
2000 Market Street
Suite 2300
Philadelphia, PA 19103
Counsel for Appellee American Board of Pediatrics

SHWARTZ, Circuit Judge.
David Rawdin sued the American Board of Pediatrics (ABP), seeking equitable
relief based on ABP’s alleged failure to accommodate his disability in violation of Title
III of the Americans with Disabilities Act (ADA). He asserts that he is disabled due to a
memory impairment and is entitled to an alteration to the multiple choice exam used as
part of the ABP’s certification process. Because Rawdin has not shown he is entitled to
the relief he seeks, we will affirm the judgment in favor of ABP.
I
While attending college, Rawdin was diagnosed with Posterior Fossa
Ependymoma, a type of brain tumor. After brain surgery, chemotherapy, and radiation
therapy, Rawdin completed college and graduated from medical school. He, however,
twice failed Step III of the United States Medical Licensing Exam (USMLE), which used
a multiple choice format.
After failing the second time, Rawdin felt something was amiss and saw a
neuropsychologist, who concluded that Rawdin had a cognitive impairment, likely due to
the treatment he received for his brain tumor, that impacted his memory retrieval system,
and that this impairment likely gave him trouble on the multiple choice exam.

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Not long after the neurological evaluation, Rawdin’s tumor recurred and he had to
undergo further surgical treatment. After surgery, Rawdin experienced multiple
complications, requiring him to leave the medical profession for four years. Upon his
return, and based on the neuropsychologist’s diagnosis, Rawdin requested
accommodations when taking Step III for the third time. His request was granted and he
was provided the following accommodations: (1) double time to take the exam, (2) an
individual testing room, and (3) “off the clock” breaks. With these accommodations,
Rawdin passed Step III on his third attempt and received his Pennsylvania medical
license in 2000. He thereafter completed a pediatric residency and began practicing at
the Children’s Hospital of Philadelphia (CHOP). Rawdin flourished at CHOP,
successfully treating over 10,000 babies.
CHOP required its physicians to obtain “board certification” within five years of
joining the hospital. JA 7. ABP is the only organization that certifies pediatricians. To
receive certification from ABP, a physician must, among other things: (1) complete three
years of pediatric training; (2) pass a peer and patient review; and (3) pass a multiple
choice exam known as the General Pediatrics Certifying Examination (the Exam).
The Exam consists of four sections and 335 multiple choice questions.1 Each
question is “cue- or story-based and contextual, providing the test-taker with a scenario

1
ABP develops the Exam through a series of phases that involves identifying the thirty-five subjects to be
tested, allotting the percent of the Exam devoted to each subject, and having subject-matter experts write questions.
The questions are then edited and reviewed at two consecutive annual meetings. An expert for ABP testified that
the development cost for the 2011–2012 exam was $3,500 per question and that, on average, it takes two years from
the time a question is first submitted until it appears on the exam.

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and asking for the most likely diagnosis, treatment, or next step.”2 JA 8, 372-73, 753.
The examinee must select the correct answer from five choices. The multiple choice
format facilitates the testing of a breadth of knowledge in only seven hours, does not rely
on the subjective judgments of graders, and is more reliable3 than other exam forms.
Rawdin sat for the Exam five times and failed each time. After he failed the
second time, his neuropsychologist reevaluated him using intelligence, academic
achievement, neuropsychological, personality, and behavior tests. His scores showed that
his memory was weak as compared to his overall intelligence, but was within the normal
range. The neuropsychologist found that Rawdin’s memory was not “efficient” and that
he struggled when asked to retrieve information out of context. JA 10, 215.4
A second neuropsychologist, Dr. Edward Moss, who has assisted other doctors
struggling with their training, reviewed the neurological test results. He similarly
described Rawdin’s specific impairment as difficulty pulling “together on command

2

Here is an example:

A 16-month-old boy has recurrent diarrhea. He passes three to six liquid stools per day. Results
of stool testing for routine bacterial pathogens, Clostridium difficile toxin, Giardia, and rotavirus
have been negative. Family history includes autoimmune thyroiditis in the mother and type 1
diabetes in a cousin.
Physical findings include height at the 50th percentile (consistent with previous measurements)
and weight at the 5th percentile (formerly at the 25 percentile). The abdomen is distended and
tympanitic, with hyperactive bowel sounds.
Results of which of the following will most likely be helpful in establishing the diagnosis?
A.
B.
C.
D.
E.

Anti-tissue transglutaminase antibody titer
Sweat chloride test
Sucrose breath hydrogen test
Fecal elastase activity
Fecal α1-antitrypsin concentration

JA 943.
An exam is psychometrically “reliable” if its results are “consistent across test-takers.” JA 17.
The neuropsychologist diagnosed Rawdin with “Cognitive Disorder Not Otherwise Specified,” which is a
residual diagnosis for a cognitive disorder that does not meet the criteria for a specific disorder. JA 10.
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discre[te] bits of unrelated information,” which he opined was the kind of task an
examinee faces on a multiple choice exam. JA 494, 581. Moss acknowledged, however,
that he was not familiar with the Exam and was not trained as a psychometrician. Moss
nonetheless opined that if Rawdin were tested in another format, he might “perform at a
higher level.” JA 497. Moss agreed that while Rawdin’s memory was weak as compared
to his overall intelligence, it fell within the average range.5
By the time Rawdin reached the five-year deadline to receive his certification, he
still had not passed the Exam and faced termination at CHOP. Due to Rawdin’s excellent
performance and a letter from Moss explaining Rawdin’s impairment, however, CHOP
gave Rawdin an extra year to obtain his certification. Rawdin again took the Exam but
failed, and was terminated in January 2010.
In 2010, Rawdin wrote to ABP, explaining his impairment and requesting an
alternative means of certification. In response, ABP informed Rawdin that it could not
waive the Exam, offer an alternative format, or certify a doctor who had not passed the
Exam, as this would “fundamentally alter the nature of the certification process,” JA 12,
148, but suggested that he request accommodations under the ADA.
In April 2011, Rawdin applied to take the Exam again. For the first time, his
neuropsychologist informed ABP of Rawdin’s diagnosis and requested the following
accommodations: (1) extended time; (2) a quiet setting; (3) advance knowledge of the
subjects covered on each part of the Exam; (4) access to reference materials (i.e., making

A third expert who reviewed Rawdin’s records also concluded that Rawdin’s memory scores were weak
relative to his other scores, but his memory scores were within the normal range.
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the Exam “open-book”); (5) short breaks; and (6) an essay format. ABP granted
Rawdin’s request for additional time, a quiet setting, and short breaks, but denied his
request for “advance knowledge” of the topics and “open-book” accommodations
because “these accommodations would not allow ABP to adequately, reliably, and
validly test Dr. Rawdin’s knowledge.” JA 13, 422-25. ABP also determined that an
essay exam would take an unreasonably long time to construct (over two years), would
be prohibitively expensive, and would not meet its reliability and validity standards.
Rawdin failed the 2011 Exam.
In December 2012, Rawdin filed suit against ABP, and subsequently filed a
motion for a preliminary injunction directing ABP to grant him immediate board
certification without having to pass the Exam, or, in the alternative, to provide him with
an open-book format, essay format, or evaluation in a clinical setting. With the parties
consent, the District Court consolidated the preliminary injunction hearing with a bench
trial on the merits, and found that Rawdin was not entitled to relief because: (1) Rawdin
was not disabled; and (2) Rawdin was not entitled to the requested accommodations
because they (a) were unreasonable and (b) would fundamentally alter the Exam or
impose an undue burden on ABP. Rawdin appeals.
II6

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The District Court exercised jurisdiction under 28 U.S.C. § 1331 and this Court has jurisdiction under 28
U.S.C. § 1291. After a bench trial, we review a district court’s findings of fact for clear error and its legal
conclusions de novo. CG v. Pa. Dep’t of Educ., 734 F.3d 229, 234 (3d Cir. 2013). If certain fact findings are
unchallenged, this Court may “accept the findings as true.” Id. A “finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573 (1985) (quotation
marks omitted).
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Congress enacted the ADA to eliminate discrimination against individuals with
disabilities. 42 U.S.C. § 12101(b)(1). Title III of the ADA specifically prohibits public
accommodations, including testing entities, from engaging in disability discrimination.
42 U.S.C. §§ 12181-12189. Title III contains a section governing testing entities, which
provides:
Any 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. § 12189. The purpose of this section is “to assure that persons with disabilities
are not foreclosed from educational, professional or trade opportunities because an
examination or course is conducted in an inaccessible site or without an
accommodation.” H.R. Rep. No. 101–485(III), at 68–69 (1990), reprinted in 1990
U.S.C.C.A.N. 445, 491–92. Section 12189 applies to ABP because it is an entity that
“offers examinations or courses related to . . . certification, or credentialing for . . .
professional . . . purposes.”
The Attorney General is charged with issuing regulations for all non-transportation
provisions of Title III, including issuing accessibility standards that testing entities must
follow.7 Under this authority, the Attorney General issued a regulation implementing §
12189, which defines the obligation of testing entities:

“Congress did not incorporate [the] ‘reasonable accommodation’ standard” that applies to cases arising
under the employment provisions under Title I “into § 12189.” Enyart v. Nat’l Conference of Bar Exam’rs, Inc., 630
F.3d 1153, 1162 (9th Cir. 2011); Doe v. Nat’l Bd. of Med. Exam’rs, 199 F.3d 146, 155 (3d Cir. 1999); Bonnette v.
D.C. Court of Appeals, 796 F. Supp. 2d 164, 182 (D.D.C. 2011); 42 U.S.C.§12112(b)(5)(A).
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Any private entity offering an examination covered by this section must
assure 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 . . . .
28 C.F.R. § 36.309(b)(1)(i) (emphasis added).
We will assume without deciding that Rawdin is disabled under the ADA.8 We
therefore next address whether his disability entitles him to protection under
§ 36.309(b)(1)(i).9
Even if Rawdin’s impairment fell within the categories of disabilities that the
regulation covers, ABP has shown that the Exam “best ensures” that its results will
accurately reflect Rawdin’s aptitude rather than his disability. 28 C.F.R.
§ 36.309(b)(1)(i). According to his experts, Rawdin’s disability impairs his ability to
recall information out of context. It follows, then, that ABP is required to “best ensure”
that the Exam reflects Rawdin’s aptitude and not his difficulty recalling information out

The ADA defines “disability” to include “a physical or mental impairment that substantially limits one or
more of the major life activities of [an] individual.” 42 U.S.C. § 12102(1)(A).
9
Congress directed the DOJ to promulgate regulations implementing Title III, 42 U.S.C. § 12186(b), and,
as a result, such regulations are “entitled to substantial deference,” Helen L. v. DiDario, 46 F.3d 325, 331-32 (3d
Cir. 1995), and “given controlling weight unless [they are] arbitrary, capricious, or manifestly contrary to the
statute.” Chevron, U.S.A., Inc., v. Natural Res. Defense Council, Inc., 467 U.S. 837, 844 (1984)). Thus, we must
consider “whether the [agency’s] rule is a ‘reasonable interpretation’” of the statute. Mayo Found. for Med. Educ.
& Research v. United States, 131 S. Ct. 704, 714 (2011) (quoting Chevron, 467 U.S. at 844).
Section 12189 requires entities like ABP to offer exams in a manner “accessible” to disabled people or to
offer “alternative accessible arrangements.” 42 U.S.C. § 12189. As this Court observed in Doe, “the notion of
accessibility . . . mandates changes to examinations . . . so that disabled people who are disadvantaged by certain
features of standardized examinations may take the examinations without those features that disadvantage them.”
Doe, 199 F.3d at 156. Section 36.309(b)(1)(i)’s “best ensure” standard accomplishes this goal and hence is a
reasonable interpretation of § 12189’s accessibility requirement as it requires testing entities to “provide disabled
people with an equal opportunity to demonstrate their knowledge or abilities to the same degree as nondisabled
people taking the exam.” Enyart, 630 F.3d at 1162. For this reason, the “DOJ’s regulation is not based upon an
impermissible construction of § 12189,” and thus § 36.309 is entitled to deference. Id. at 1163; Jones v. Nat’l
Conference of Bar Exam’rs, 801 F. Supp. 2d 270, 284 (D. Vt. 2011); Bonnette, 796 F. Supp. 2d at 183-85.
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of context. ABP provided example questions and testimony that show that it satisfies this
standard since the Exam does not require an examinee to recall information out of
context. JA 753 (testimony that the Exam does not require an examinee “to dredge up
the answer from nowhere and write it down” and that the questions provide “context”);
JA 373 (testimony that the questions are “contextual” and present the examinee with a
“scenario”); JA 420 (testimony that the questions are “constructed in a way that an
individual is presented with a clinical vignette”). Rawdin failed to present any evidence
refuting ABP’s characterization of the exam questions as contextual and cue- and storybased. Indeed, his only expert, Dr. Moss, admitted that he knew nothing about the
Exam’s questions, layout, or format, and that he is not a psychometrician and has never
developed an exam. Given Moss’s lack of familiarity with the Exam and testing
generally, it was not clearly erroneous for the District Court to discount his testimony and
credit the testimony of witnesses who were familiar with the Exam and testing generally.
III
Like the District Court, we acknowledge Rawdin’s impressive clinical talents but
conclude that the record and law do not provide a basis for relief. Thus, we will affirm
the judgment.

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