NOT PRECEDENTIAL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 App e llant David RawdinSangjoon Ha n [ARGUED]

Anthony J. Sun Covington & Burling 1201 Pennsylvania Avenue, N.W. Washington, DC 20004 Counsel for Amicus The American Association of People with D isabilities; The Association o n Higher Education And Disability ; The Bazelon C enter For Mental Hea lth Law ; The Council o f Par ent Attorneys a nd Advocates ; D isability 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 [A RGUED] Price Parkinson & Kerr 5742 West Harold Gatty Drive Salt Lake City, UT 84116 Jeffrey P. B ates, Esq. Abrahams, Loewenstein & Bushman Three Parkway, Suite 1300 16th & Cherry Streets Philadelphia, PA 19103 Douglas P. Farr, Esq. Snell & Wilmer 15 Wes t 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 PediatricsSHWARTZ, 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

memo ry 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 atten ding college, Rawdin was diagnosed with Posterior Fossa Ependymoma , a type of brain tumor. After brain surgery, chemotherapy, and radiation therapy, Rawdin completed c ollege and graduated from medical school. He , however,
twice failed Step III of the Uni ted States Medical Licensing Exam (USMLE) , which used a multiple choice format

. After failing the second time, Rawdin felt something was amiss and s aw a neuropsychologist, who concluded that Rawdin had a cogniti ve impairment, likely due to
the treatment he received for his brain tumor , that impacted his memory retrieval system,
and th at 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 f or four years. Upon his return, and b ased on the neuropsychologist’s diagnosis, Rawdin requestedaccommodations 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 t hird 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 certifica tion from ABP, a physician must, among other things : (1) comp lete 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 and asking for the most likely diagnosis, treatment, or next step. ” 2 JA 8, 372

- 73, 753.

1 ABP develop s the Exam through a series of phases that involves identifying the thirty

- five subjects to be tes ted, al lotting the p ercent of the Exam devoted to e ach subject , and having s ubject

- matter experts write questions. T he quest ions are then edited and reviewed at two consecutive annual meeting s
. 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 mu ltiple choice

format facilitates the testing of a b readth of knowledge in only seven hours, does not rely on the subjective judgments of graders, and is more reliable 3 than other exam forms.
Rawdin sat for the Exam five times and failed each time. Afte r 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 w ithin 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 docto rs 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

ex aminee face s 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 psychometri ci an. Moss
nonetheless opined that if Rawdin w ere 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 Disorde r Not Otherwise Specified , ” which is a res idual diagnosis for a cognitive disorder that does not meet the criteria for a specific disorder. JA 10.higher level.” JA 497. Moss agr eed that while Rawdin’s memory wa s weak as compared

to his overall intelligence, it fe ll within the average range. 5 By the time Rawdin reached the five

- year deadline to receive his certification , he still had not pas sed 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 t erminated 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 re quested 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., m aking 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 d enied his request for “advance knowledge” of the topics and “open

- book” accommodations
becaus e “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 sc ores 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 prohibitivel y 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 i njunction direct ing 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, t he District Court consolidated the preliminary injunction hearin g 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.
II 6 Congress enacted the ADA to eliminate discrimination against individuals with disabilities. 42 U.S.C. § 12101(b)(1). Title III of the ADA specifically prohibit s public
accommodations , inclu ding testing entities, from engaging in disability d iscriminati o n.

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 leg al 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 suppor t 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, cert ification, 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 s uch individuals. 42 U.S.C. § 12189. The purpose of this section is “to assure that persons with disabilities are not foreclosed from educational, p rofessional 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 credentialin g 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 , t he Attorney General issued a regulation implementing §
12189 , which defines the obligation of testing entities : Any private entity offering an examination covered by th is 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 ac curately reflect the individual’ s aptitude or achievement level or whatever other fact or the examination purports to measure, rather than reflecting the indi vidual’ s impaired sensory, manual, or speaking skills

. . . .

7 “Congress did not incorpora te [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 W e therefore next address whether his disability entitles him to protection under § 36.309(b)(1)(i)

. 9
E ven if Rawdin’s impairment fell within the categories of disabilities that the regulation covers, ABP has shown that the Exam “best ensures” that its r esults will accurately reflect Rawdin’s aptitude rather than his disabili ty. 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 t he 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, 8 44 (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 hen ce 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 e xam.” 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 con textual and cue

- and story

based. 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.