NOT PRECEDENTIAL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 )

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OPINION

______________________

Robert F. Morris [ARGUED]

Joshua J. Knepp

Morris & Clemm

527 Plymouth Road

Suite 416

Plymouth Meeting, PA 19462

Counsel for Appellant David Rawdin
Sangjoon Han [ARGUED]

Anthony J. Sun

Covington & Burling

1201 Pennsylvania Avenue, N.W.

Washington, DC 20004

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]

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

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. 

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.1Each 

question is “cue- or story-based and contextual, providing the test-taker with a scenario 

and asking for the most likely diagnosis, treatment, or next step.”

2

JA 8, 372-73, 753. 

 

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. 

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?
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 reliable3than 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 

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 

 

A. Anti-tissue transglutaminase antibody titer

B. Sweat chloride test

C. Sucrose breath hydrogen test

D. Fecal elastase activity

E. Fecal α1-antitrypsin concentration

JA 943.

3 An exam is psychometrically “reliable” if its results are “consistent across test-takers.” JA 17.

4 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. 
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 

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 

 

5 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. 
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

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. 

 

6 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).
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: 

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 . . . .

 

7

“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). 
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 

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”); 

 

8 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.
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.