2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-23-2010

Fromm v. MVM Inc

Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1410

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 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 06-1410

____________

ALAN J. FROMM,

Appellant

v.

MVM, INC.; Attorney General of the United States in his official capacity as 

Attorney General of the United States and Chief Administrative Officer of the

United States Department of Justice;

Director of the United States Marshal Service

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 04-cv-01315)

District Judge: Honorable William W. Caldwell

____________

Argued November 30, 2009

Before: FISHER, HARDIMAN and STAPLETON, Circuit Judges.

(Filed: March 23, 2010)

Jeffrey C. Dohrmann (Argued)

Rieders, Travis, Humphrey, Harris,

 Waters & Waffenschmidt

161 West Third Street

P.O. Box 215

Williamsport, PA 17701

Counsel for Appellant
2

Jason M. Branciforte

Katherine A. Goetzl (Argued)

Littler Mendelson

1150 17th Street, N.W., Suite 900

Washington, DC 20036

Counsel for Appellee, MVM, Inc.

Marleigh D. Dover

Eric Fleisig-Greene (Argued)

United States Department of Justice

Civil Division, Room 7214

950 Pennsylvania Avenue, N.W.

Washington, DC 20530

Counsel for Appellees, Attorney

General of the United States and

United States Marshal Service

____________

OPINION OF THE COURT

____________

FISHER, Circuit Judge.

Plaintiff Alan Fromm was terminated from his employment as a court security

officer following his medical disqualification for a hearing impairment in his right ear. 

Fromm appeals the District Court’s grant of summary judgment in favor of all defendants

on his claims under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C.

§§ 12101-12213, the Rehabilitation Act, 29 U.S.C. § 794, the Pennsylvania Human

Relations Act (“PHRA”), 43 P.C.S.A. § 955(a), and the procedural due process clause of

the Fifth Amendment. For the reasons stated herein, we will affirm in part, reverse in

part, and remand for further proceedings.
3

I.

We write exclusively for the parties, who are familiar with the factual context and

legal history of this case. Therefore, we will set forth only those facts necessary to our

analysis.

Alan Fromm was employed by MVM, Inc. (“MVM”) from February 1998 through

October 2002, as a court security officer (“CSO”) at the federal courthouse in

Williamsport, Pennsylvania. MVM provided security services for federal courts in the

Third Circuit through its contract with the United States Marshals Service (“USMS”). 

The contract sets forth medical standards for individual CSOs and gives USMS “the right

at all times to determine the suitability of any Contractor employee to serve as a CSO.” 

(App. 107.) Under the contract, “[a]ny decision to continue a Contractor employee in a

CSO capacity will be made solely by [USMS].” (Id.) Fromm, who has suffered from

reduced hearing in his right ear, performed his duties as a CSO without the assistance of a

hearing aid.

In 2002, USMS instituted a new medical requirement that CSOs had to possess

certain hearing capacities without the use of a hearing aid. The new medical standards

were developed by Dr. Richard Miller, Director of Law Enforcement Medical Programs,

at the request of the Judicial Conference of the United States. Dr. Miller identified

twenty-nine CSO job functions, six of which related to hearing: comprehending speech

during face to face conversations, over the telephone, over the radio, and outside the
4

range of sight; hearing sounds that require investigation; and determining the location of

sound. According to Dr. Miller, each of the hearing functions must be met without the

use of a hearing aid. However, if a CSO passes the hearing tests unaided, he may be

permitted to wear a hearing aid on the job. In 2001, the Judicial Conference and USMS

reviewed and adopted the Miller Report as the new medical standards for CSOs (the

“CSO hearing standards”).

Pursuant to the CSO hearing standards, a government physician initially

determined on April 30, 2002, that Fromm was no longer medically qualified to serve as a

CSO based on the reduced hearing in his right ear. Fromm took a second hearing test,

and his results were reviewed by a new government physician on October 3, 2002, who

also determined that Fromm was medically disqualified under the new CSO hearing

standards. After USMS notified MVM of its disqualification determination, MVM

terminated Fromm on October 17, 2002.

Under the terms of MVM’s contract with USMS, a CSO removed for failure to

meet medical requirements is afforded no notice and hearing. Nonetheless, Fromm sent a

letter requesting review of his termination to Steve Gottrich, MVM’s Senior Operations

Coordinator, on October 23, 2002. Additionally, in November 2002, Fromm obtained a

hearing aid and sent MVM the results of a hearing test that he took with his hearing aid. 

Fromm argued that the new test results demonstrated he could meet the hearing functions

required of a CSO. MVM submitted the results of this test to the Marshals Service on
Fromm also filed a complaint under the Rehabilitation Act with the Department of 1

Labor Office of Federal Contract Compliance Programs on or about July 7, 2003. This

complaint was closed because Fromm had first filed with the EEOC.

5

December 3, 2002, and requested that the agency reconsider its decision to disqualify

Fromm from working as a CSO. Gottrich contacted USMS by telephone and was

informed that Fromm’s medical disqualification would not be reconsidered.

Fromm filed an administrative complaint against MVM with the Equal

Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Relations

Commission (“PHRC”) on November 19, 2002, alleging violations of the ADA and the

PHRA. In August 2003, Fromm wrote to the EEOC seeking to amend his complaint to 1

include the Marshals Service, the United States Department of Justice, and the United

States Attorney General as respondents. The EEOC replied that it lacked authority to

investigate discrimination by federal entities and enclosed a form explaining the

administrative procedures for such a complaint, which involved filing a complaint with

the Equal Employment Office (“EEO”) for the appropriate federal defendant. Fromm

never filed an administrative complaint under the Rehabilitation Act with the USMS’s

EEO.

In June 2004, Fromm filed suit in the United States District Court for the Middle

District of Pennsylvania against MVM, as well as the Director of USMS and the Attorney

General of the United States (collectively the “Federal Defendants”), alleging his

termination violated the ADA, the Rehabilitation Act, and the PHRA, as well as the
Under the ADA, an “individual with a disability” includes not only an individual 2

who “has a physical or mental impairment which substantially limits one or more of such

person’s major life activities,” but also an individual who “is regarded as having such an

impairment.” 42 U.S.C. § 12102(3). The District Court correctly limited Fromm’s theory

to the latter “regarded as” disability because his hearing impairment is mitigated by

corrective measures. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 487 (1999)

superseded by statute, ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat.

3553 (2008).

6

substantive and procedural due process protections of the Fifth Amendment. Fromm v.

MVM, Inc., 2006 WL 133540, at *1 (M.D. Pa. Jan. 10, 2006). The District Court

dismissed a number of the claims, but permitted Fromm to proceed to the merits against

MVM under the ADA, Rehabilitation Act, and PHRA and against the Federal Defendants

under the Rehabilitation Act and procedural due process. Id. These claims were all

limited to his theory that he was discriminated against for a “regarded as” disability. Id. 2

Following discovery, MVM and the Federal Defendants each filed a motion for

summary judgment on the remaining claims. Both motions were granted. The District

Court reasoned that the Rehabilitation Act claims against all defendants failed because

Fromm had failed to present sufficient evidence that he could perform the essential

functions of the job, where one of those essential functions was unaided hearing in

accordance with the CSO hearing standards. Id. at *4-6. Because the remaining

disability claims against MVM under the ADA and PHRA were premised on USMS’s

decision to disqualify Fromm, those claims were dismissed as well on the theory that

MVM could not be liable for complying with USMS requirements if those requirements
7

were not themselves unlawful. Id. at *6. Finally, the District Court held that the

procedural due process claim failed because USMS provided Fromm sufficient process

through the consideration of additional hearing tests. Id. at *7.

This timely appeal followed.

II.

The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343, and 1367. 

We have jurisdiction pursuant to 28 U.S.C. § 1291.

In reviewing a district court’s grant of summary judgment, we apply the same test

the district court applied. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). 

Summary judgment is proper when, viewing the evidence in the light most favorable to

the non-moving party and drawing all inferences in that party’s favor, there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. Id.

at 232; Fed. R. Civ. P. 56(c).

III.

On appeal, Fromm raises three principle arguments: (1) that he exhausted all

administrative remedies known to him and should be excused from any further exhaustion

requirements; (2) that his inability to appeal the basis for his termination deprived him of

procedural due process; and (3) that letters submitted on his behalf by court officials

demonstrating he had successfully performed his CSO position created a genuine issue of
8

material fact as to whether unaided hearing was an “essential function” of the job. We

will address these arguments in turn.

A. Administrative Exhaustion

A party filing a claim under § 501 of the Rehabilitation Act must first exhaust the

administrative remedies established under Title VII of the Civil Rights Act of 1964. See

29 U.S.C. § 794a(a)(1) (incorporating Title VII “remedies, procedures, and rights” into

the Rehabilitation Act). An individual who believes he has suffered a violation of the

Rehabilitation Act must contact an agency’s EEO counselor within forty-five days of the

complained of incident. 29 C.F.R. § 1614.105(a)(1). This contact sets into motion a

chain of events which will lead to either an informal resolution of the claim or a dismissal

by the EEO, at which point an employee may contact the EEOC and seek the right to sue

in district court. 29 C.F.R. §§ 1614.106-.108.

Fromm does not contest that he has failed to avail himself of these required steps. 

Rather, he seems to argue that administrative exhaustion would have been futile because,

as the USMS EEO counselor submitted to the Court, “EEO counselors are not qualified to

review the substance of medical determinations.” (App. 212-13.) Thus, Fromm argues

“there was no real EEO process available to [him] against the USMS.” (Fromm Br. 11.)

Although Fromm cites no law for his arguments, we held in Wilson v. MVM, Inc.,

475 F.3d 166 (3d Cir. 2007), that the Rehabilitation Act’s exhaustion requirements were

prudential as opposed to jurisdictional and therefore subject to a futility exception where
9

a party provides “a clear and positive showing” of futility. Id. at 175. Fromm offers no

such showing here. While EEO counselors at USMS could not review the substance of

medical determinations, they at least had the authority to investigate the reasons for a

medical disqualification or correct any errors in the procedures used to evaluate Fromm’s

hearing. To facilitate these ends, Fromm was specifically informed by the EEOC of the

process for filing a Rehabilitation Act complaint against the Federal Defendants. His

opinion that partaking of the available process would not have resulted in a favorable

outcome does not excuse procedural non-compliance.

Accordingly, we hold that Fromm failed to exhaust his administrative remedies,

and we will affirm the District Court’s order granting summary judgment to the Federal

Defendants on the § 501 Rehabilitation Act claims.

B. Procedural Due Process

Fromm claims that MVM’s failure to provide a substantive appeal of his medical

disqualification violated his right to procedural due process under the Fifth Amendment. 

We considered and rejected an identical argument in Wilson and accordingly will address

it only briefly here. See 475 F.3d at 177-79.

As we have repeatedly noted, at a minimum, due process requires notice and a

hearing. Id. at 178. However, the extent of the notice and hearing depends on balancing

three interests: (1) the private interest at stake, (2) the risk of error in the procedure used

compared with the degree of accuracy of additional procedures, and (3) the government’s
In addressing the merits of Fromm’s disability discrimination claims, we need not 3

distinguish between the three applicable statutory schemes. We have previously held that

the ADA and the Rehabilitation Act apply the same standard to determine liability, Antol

v. Perry, 82 F.3d 1291, 1299 (3d Cir. 1996), and that the ADA and PHRA are interpreted

coextensively, Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 306 (3d Cir. 1999).

10

interest. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976)). MVM notified

Fromm that he was potentially subject to medical disqualification, provided a medical

evaluation, and permitted Fromm to provide an additional evaluation from a physician of

his choosing. We agree with the District Court that additional proceedings would not

have increased the accuracy of the medical review. See id. at 179 (“A more rigorous

process would not significantly enhance the accuracy of the medical qualification

process.”).

We will therefore affirm the District Court’s grant of summary judgment on

Fromm’s procedural due process claim.

C. Rehabilitation Act, ADA, and PHRA Claims Against MVM

An employee asserting a claim for disability discrimination must show (1) that he

has a disability, (2) that he is otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodation by the employer, and (3) that he was

terminated. Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). The District Court 3

granted summary judgment because it held that Fromm had failed to demonstrate he

could perform the “essential functions” of the job – specifically that he could not meet the

CSO hearing standards without the use of a hearing aid. Fromm argues on appeal that his
11

past satisfactory performance of the CSO job functions without the use of a hearing aid

while suffering from reduced hearing in his right ear creates a question of fact as to

whether the unaided hearing standards are an “essential function” of the CSO position.

We agree with Fromm that, based on the record in this case, he has created a

dispute of material fact over whether the unaided hearing requirements are an essential

function of the CSO position such that summary judgment on that basis was improper. 

Fromm submitted deposition testimony of supervisors at MVM confirming Fromm’s

satisfactory job performance, as well as his own testimony regarding his prior

performance, and letters from various court officials attesting that he had successfully

performed his CSO functions for a number of years with the use of a hearing aid. We

have previously held that evidence of successful job performance may suffice to create a

dispute of material fact over what constitutes an “essential function.” See Skerski v. Time

Warner Cable Co., 257 F.3d 273 (3d Cir. 2001). In Skerski, a cable installer was

terminated for not climbing ladders as a the result of an anxiety disorder even though he

had been performing the job for a number of years without climbing. Id. at 276-77. The

district court granted summary judgment, concluding that climbing was an “essential

function” of the cable installation position, based in part on the written job description of

the cable installer position which included “repetitive . . . pole climbing . . . and ladder

climbing.” Id. at 275, 277. We reversed, holding, “Skerski’s ability to perform as an

installer technician for more than three years without climbing might lead a reasonable
12

juror to infer that Skerski’s inability to climb had no adverse consequences for his

employer, a factor that is relevant to determining what is an essential function.” Id. at

283.

USMS argued at oral argument that the unaided hearing standards are an essential

function of the CSO position because they test a CSO’s ability to perform in emergency

situations where a hearing aid could malfunction or become dislodged. USMS points out

that Fromm’s ability to perform in the ordinary course does not refute its position that he

would be unable to perform in an emergency. While defining the scope of the essential

function as “unaided hearing in the event of an emergency” may well change the

summary judgment calculus, arguments are not evidence, and we find no support in the

record for this position. USMS has presented no evidence that the hearing standards were

intended for emergency situations, nor demonstrated that emergency situations are central

or imperative to the CSO position. See 29 C.F.R. § 1630.2(n)(3)(iii) (“essential

functions” under the ADA include consideration of “[t]he amount of time spent on the job

performing the function”). And even if we accepted that the hearing standards

themselves were imperative to an emergency situation, USMS has provided little beyond

conjecture in support of its argument that those standards cannot be accommodated by a

hearing aid. In fact, MVM has consistently maintained that it “did not believe that

Fromm was unqualified to continue working as a CSO because of his hearing loss.” 

(MVM Br. at 8.) Accordingly, we hold that, under the evidence presented in this case,
13

Fromm has created a dispute of material fact as to whether the unaided hearing standards

are an “essential function” of the CSO position.

We turn then to another prong of the disability discrimination analysis – whether

Fromm was “disabled” within the meaning of the applicable statutes. A claimant under

the ADA and the Rehabilitation Act must prove that he has a physical impairment that

limits a major life activity, has a record of such impairment, or is “regarded as” having

such an impairment. 42 U.S.C. § 12102(2) (2008) (ADA); 29 U.S.C. § 705(20)(B)

(2008) (Rehabilitation Act). Fromm alleges that MVM and the Federal Defendants

“regarded” him as being impaired, meaning they “mistakenly believe[d] that [Fromm],

has a physical impairment that substantially limits one or more major life activities” or

“mistakenly believed that an actual, nonlimiting impairment substantially limits one or

more major life activities.” Sutton, 527 U.S. at 489.

As we held in Wilson, MVM, through its own conduct, did not “regard” Fromm as

disabled within the meaning of the ADA:

The undisputed evidence shows that MVM did not consider the appellants

in any way disabled and would have reinstated them immediately if the

USMS would have determined the appellants were medically qualified. As

a matter of law, MVM did not regard the appellants as impaired within the

meaning of the ADA.

475 F.3d at 179. This conclusion, on identical relevant facts, absolves MVM of liability

under the definition provided by 42 U.S.C. § 12112(b)(3), which forbids an employer
14

from “utilizing standards, criteria, or methods of administration [] that have the effect of

discrimination on the basis of disability.”

Fromm correctly notes, however, that the ADA imposes liability not only for an

employer’s direct discriminatory standards, but for discrimination carried out via a

contractual agreement with a third party. Section 12112(b)(2) defines illegal

discrimination as “participating in a contractual or other arrangement or relationship that

has the effect of subjecting a covered entity’s qualified applicant or employee with a

disability to the discrimination prohibited by this subchapter.” The purpose of this

provision is to ensure that an employer “may not do through a contractual or other

relationship what it is prohibited from doing directly.” 29 C.F.R. pt. 1630, App. § 1630.6.

If MVM, via its contract with USMS, has subjected Fromm to “discrimination

prohibited by [the ADA],” it cannot rest on blind contractual compliance to escape

liability for discrimination. See Holiday v. City of Chattanooga, 206 F.3d 637, 645 (6th

Cir. 2000) (“Employers do not escape their legal obligations under the ADA by

contracting out certain hiring and personnel functions to third parties.”); cf. Powers v.

Ala. Dept. of Educ., 854 F.2d 1285, 1294-95 (11th Cir. 1988) (holding under Title VII

that “an employer cannot delegate several aspects of its promotion procedure to another
The potential application of §12112(b)(2) was not addressed by this Court in 4

Wilson. Accordingly, though we agree with our dissenting colleague that Wilson

presented “indistinguishable facts,” we are called in this instance to address a distinct

legal argument: MVM’s potential liability via its contract with USMS.

We respectfully disagree with the dissent’s reliance on the Ninth Circuit decision 5

in Walton v. U.S. Marshals Service, 492 F.3d 998 (9th Cir. 2007). The court in Walton,

relying on the Supreme Court decision in Sutton, held that disqualification under the

USMS hearing standards cannot raise a dispute of material facts as to whether USMS

regards that employee as disabled in a major life activity. Id. at 1007. Sutton, however,

says only that an employer’s implementation of physical requirements alone does not

suffice to support a claim of “regarded as” disability because many such qualifications, if

not met, will not “rise to the level of an impairment.” 527 U.S. at 490. The Court goes

on to hold, “An employer runs afoul of the ADA when it makes an employment decision

based on a physical or mental impairment, real or imagined, that is regarded as

substantially limiting a major life activity.” Id. It would be premature, at this stage, for

15

agency such as SPD and then escape liability if that agency develops discriminatory

practices” and collecting cases).4

Thus, even though USMS is properly dismissed from the case due to Fromm’s

failure to exhaust administrative remedies, the question of MVM’s liability turns on, inter

alia, whether USMS engaged in “discrimination prohibited by [the ADA.]” Because

various aspects of USMS’s allegedly discriminatory conduct, including the question of

whether USMS “regarded” Fromm as disabled, were not argued before this Court and not

considered by the District Court below, we will remand for further consideration of

whether MVM is liable for “participating in a contractual or other arrangement or

relationship that has the effect of subjecting a covered entity’s qualified applicant or

employee with a disability to the discrimination prohibited by [the ADA.]” 42 U.S.C.

§ 12112(b)(2).5
us to decide what the District Court has not: whether USMS believed that Fromm’s

hearing loss constitutes an impairment “substantially limiting a major life activity.” 

Because this question goes to USMS’s motivations and potential biases, it cannot be

answered by resort to evidence of MVM’s willingness to employ Fromm.

16

IV.

For the foregoing reasons, we will affirm summary judgment for the Federal

Defendants, reverse summary judgment for MVM on Fromm’s ADA, RA, and PHRA

claims, and remand for further proceedings consistent with this opinion.
STAPLETON, Circuit Judge, dissenting:

While I agree with initially all that is said by the Court, I nevertheless conclude

that summary judgment for MVM was appropriate.

We explained the law that is controlling here in Wilson v. MVM, Inc., 475 F.3d

166, 179 (3d Cir. 2007) (brackets in original), a case with indistinguishable facts:

In order to prevail on a claim under the ADA, a claimant must prove that he

is disabled within the meaning of the statute, proving that he has a physical

impairment that limits a major life activity, has a record of such an

impairment, or is “regarded as” having such an impairment. 42 U.S.C. §

12102(2); 29 U.S.C. § 705(20)(B). The appellants cannot prove that their

impairments are not mitigated by corrective measures, thus barring a claim

that they have impairments that limit a major life activity. Sutton v. United

Air Lines, Inc., 527 U.S. 471, 487, 119 S. Ct. 2139, 144 L.Ed.2d 450

(1999). Therefore, they can only prevail if they show that MVM “regarded”

them as being impaired. To meet this standard, MVM must have

“mistakenly believed that [the appellants] have a physical impairment that

substantially limits one or more major life activities” or “mistakenly

believed that an actual non-limiting impairment substantially limits one or

more major life activities.” Id. at 489, 119 S. Ct. 2139. It is insufficient for

the appellants to show that MVM thought they were, in some way,

impaired. Rather, the appellants must show that MVM thought they were

disabled “within the meaning of the statute.” Rinehimer v. Cemcolift, Inc.,

292 F.3d 375, 381 (3d Cir. 2002).

In Wilson, we concluded that the undisputed evidence showed that MVM believed

only that the claimants did not meet the requirements established by the Judicial

Conference for service as a CSO. There was no evidence that they were regarded as

having an impairment which “substantially limits one or more major life activities.” Id. 

Summary judgment for MVM was accordingly appropriate. As the Supreme Court

emphasized in Murphy v. United Parcel Service, Inc., 527 U.S. 516 (1999), a claimant

must show that her employer regards her as substantially limited in a major life activity
2

and not just unable to meet the requirements of a particular job.

Like the claimants in Wilson, Fromm does not claim to be actually disabled. His

sole claim is that he was “regarded as” disabled. More specifically, in response to the

following interrogatory, he gave the following answer:

Interrogatory 8

Identify what activity or activities you believe MVM erroneously

regarded your hearing loss as limiting.

Response

Plaintiff’s ability to perform the CSO responsibilities and duties.

App. at 350, 359.

MVM does not here dispute that it regards Fromm as unable to meet the

requirements established by the Judicial Conference for service as a CSO, and the Court

correctly concludes, as dictated by Wilson, that as a “matter of law, MVM did not regard

[Fromm] as impaired within the meaning of the ADA.” Wilson, 475 F.3d at 179.

After so concluding, the Court finds that this does not end the matter because

Fromm, in his reply brief, suggests that the contractual relationship between MVM and

the Marshals Service “has the effect of subjecting a[n] . . . employee with a disability [i.e.,

Fromm] to the discrimination prohibited by” the ADA in violation of 42 U.S.C. §

12112(b)(2). Reply Br. at 3. The problem with this newly conceived argument is, of

course, that Fromm has tendered no evidence that either of the appellees regarded him as

disabled within the meaning of the ADA. The undisputed evidence shows that the
 Fromm’s briefing does not purport to distinguish Wilson. Rather, he “respectfully 1

submits that the Wilson panel erred in its interpretation of the ADA.” Reply Br. at 3. Our

panel cannot overrule Wilson.

3

Marshals Service, like MVM, believed only that Fromm could not meet the requirements

established by the Judicial Conference for service as a CSO. As with MVM, there is no

evidence that the Marshals Service regarded Fromm as having any impairment which

“substantially limits one or more major life activities.” Accordingly, § 12112(b)(2) does

not alter the propriety of the summary judgment in favor of MVM.

Fromm appears to assume that the Medical Review Forms of the Marshals Service

raise a genuine issue of material fact as to whether it believed he was substantially limited

in a major life activity. Standing alone, however, Fromm’s failure to meet the Marshals

Service hearing standards does not raise a genuine issue of material fact as to whether the

Marshals Service regarded that impairment as substantially limiting him in one or more

major life activities. The Court of Appeals for the Ninth Circuit so held in Walton v. U.S.

Marshals Service, 492 F.3d 998 (9th Cir. 2007), a case indistinguishable from Fromm’s

and involving the same Judicial Conference requirements for CSO service.

In short, the Court today holds based on Wilson that, as a matter of law, MVM did

not regard Fromm as impaired within the meaning of the ADA. It nevertheless remands 1

so that the District Court can consider whether the Marshals Service so regarded him. 

However, since the information available to the Marshals Service regarding Fromm’s

hearing was precisely the same as the information available to MVM, it necessarily
4

follows from the Court’s holding that the Marshals Service could not have regarded him

as disabled within the meaning of the ADA. For that reason, I would affirm rather than

remand for further proceedings.