Singh v. George Washington University School of Medicine & Health Sciences

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 17, 2007 Decided December 4, 2007

No. 06-7133

CAROLYN SINGH,

APPELLANT/CROSS-APPELLEE

v.

GEORGE WASHINGTON UNIVERSITY SCHOOL OF MEDICINE

AND HEALTH SCIENCES, ET AL.,

APPELLEES/CROSS-APPELLANTS

Consolidated with

06-7134

Appeal from the United States District Court

for the District of Columbia

(No. 03cv01681)

Bruce Fein argued the cause and filed the briefs for

appellant/cross-appellee.

Carol A. Lafond argued the cause for amicus curiae the

National Disability Rights Network in support of cross-

appellee. With her on the brief were John M. Nonna and

Richard J. Cairns.

2

Henry Morris, Jr., argued the cause and filed the briefs

for appellee/cross-appellant George Washington University

School of Medicine and Health Sciences.

Robert A. Burgoyne was on the brief for amici curiae

Association of American Medical Colleges, et al., in support

of appellees.

Before: GINSBURG, Chief Judge, and EDWARDS and

WILLIAMS, Senior Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS.

WILLIAMS, Senior Circuit Judge: Carolyn Singh was a

medical student at George Washington University (“GW”)

from 2000 until she was dismissed for academic reasons in

2003. Singh later sued GW, saying that it had violated the

Americans with Disabilities Act (“ADA”) by failing to

accommodate her alleged learning disabilities.

Singh began her medical studies after a high school and

undergraduate career that both parties describe as illustrious,

despite Singh’s inferior performance—as she sees it—on

timed multiple-choice tests as opposed to other means of

assessment. Due in part to her poor performance on certain

multiple-choice tests, such as the Medical College Admission

Test (“MCAT”), she was admitted to a decelerated program at

GW, with a reduced courseload and heightened standards for

academic dismissal. There she received failing or

unsatisfactory grades in several courses, based in part on

multiple-choice examinations. A faculty committee

recommended to the school’s dean, John Williams, that he

dismiss her. Shortly thereafter Dr. Anne Newman, an

independent professional psychologist chosen by Singh from a

short list recommended by GW’s Disability Support Services,

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diagnosed Singh with dyslexia and a mild disorder of

processing speed, and recommended various accommodations

to improve her performance. Singh communicated the

diagnosis and a request for accommodations to Dean

Williams, who shortly thereafter sent her a written notice of

dismissal.

After Singh brought suit, both sides moved for summary

judgment as to whether she had a disability. The ADA

defines disability as “a physical or mental impairment that

substantially limits one or more of the major life activities of

[an] individual.” 42 U.S.C. § 12102(2)(A). Thus, a plaintiff

“is disabled under the ADA if: (1) he suffers from an

impairment; (2) the impairment limits an activity that

constitutes a major life activity under the Act; and (3) the

limitation is substantial.” Haynes v. Williams, 392 F.3d 478,

482 (D.C. Cir. 2004). The district court granted Singh partial

summary judgment on the issue of impairment, holding that

she “suffers from some kind of mental impairment,” either “a

learning disability” or a “psychiatric disorder such as

depression.” Singh v. George Washington Univ., 368 F. Supp.

2d 58, 63 (D.D.C. 2005). But it denied summary judgment

for Singh or for GW on the issue of substantial limitation,

which it reserved for trial. Id. at 63, 68.

After a bench trial, the district court found that Singh had

failed to prove that she was disabled under the ADA; it then

entered judgment for GW. Singh v. George Washington Univ.

Sch. of Med. & Health Scis., 439 F. Supp. 2d 8 (D.D.C. 2006).

Singh appeals. GW cross-appeals, though it need not have, as

it sought no change in the final judgment in its favor. Mass.

Mut. Life Ins. Co. v. Ludwig, 426 U.S. 479, 480-81 (1976)

(per curiam); Freeman v. B & B Assocs., 790 F.2d 145, 150-

51 (D.C. Cir. 1986). In reality, GW seeks only affirmance of

the judgment, either on the grounds of the district court’s

latest opinion or on the basis of arguments that the district

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court rejected in various interlocutory rulings. We find GW

correct in two of these arguments. Although corrections in

favor of the appellee would normally tend to support

affirmance, we cannot affirm but must remand to the district

court for reasons developed below.

* * *

GW objects to four adverse interlocutory rulings rendered

at the summary judgment stage. It contends (1) that the

district court chose the wrong comparison group by which to

measure Singh’s “substantial limitation”; (2) that the court

misidentified the relevant “major life activity”; (3) that

Singh’s request to GW for reasonable modifications under

Title III was untimely; and (4) that Singh is not “otherwise

qualified” to attend GW, even with reasonable modifications

to the University’s program. We resolve issues (1) and (2) in

favor of GW, and issues (3) and (4) in favor of Singh.

Substantial limitation. Singh argued below that she was

substantially limited in the major life activity of learning as

compared “with a population of similar age and education

level,” or, alternatively, “with what [she] could achieve if she

was either free of her learning disabilities or was provided

reasonable accommodations.” Mem. P. & A. Supp. Pl.’s

Cross Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J. (“Mem.

P. & A.”) 6. On summary judgment, the district court held

that “an ADA plaintiff can be substantially limited . . . based

on comparisons of her success to others of comparable age

and educational background.” 368 F. Supp. 2d at 67. Thus

“[m]edical students, while in medical school, can only

compare their test scores to their fellow students.” Id. GW

argues that the proper standard is whether Singh’s limitation is

substantial as compared to the average person in the general

population. We agree with GW.

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The ADA never defines the term “substantially limits.”

Its plain text (as the district court notes) “never speaks of

making a comparison.” Id. Yet “substantial[]” is an

inherently relative term, one that demands some further

standard of measure—as do the synonyms “‘considerable’ or

‘to a large degree,’” offered by the Supreme Court in Toyota

Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S.

184, 196 (2002). In speaking of the major life activity of

performing manual tasks, the Court required that an

impairment “prevent[] or severely restrict[] the individual

from doing activities that are of central importance to most

people’s daily lives.” Id. at 198 (emphasis added). It added

that the statutory text must “be interpreted strictly to create a

demanding standard for qualifying as disabled.” Id. at 197.

The Court’s language suggests a comparison to the

general population, rather than to persons of elite ability or

unusual experience. A restriction qualifies as “severe[]” only

if it limits the impaired individual in the context of what

“most people” do in their “daily lives.” Thus Wong v. Regents

of the University of California, 410 F.3d 1052 (9th Cir. 2005),

in applying Toyota Motor, asked “whether [plaintiff’s]

impairment substantially limited his ability to learn as a

whole, for purposes of daily living, as compared to most

people,” not whether he could “keep up with a rigorous

medical school curriculum.” Id. at 1065. Similarly, most

Americans could not run a marathon, and few would regard

someone who can run a marathon—but no further—as

“severely restrict[ed]” in the major life activity of walking.

Thus, an injured ultramarathoner, who could once run 100

miles at a time, is not disabled by an impairment that forces

him to quit after 26.2 miles, even though his limitation is

substantial as compared to his unimpaired abilities or those of

his erstwhile running partners.

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The average-person criterion also appears inherent in

Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999), which

required the consideration of corrective measures (such as

eyeglasses for the visually impaired) in assessing disability.

“Because petitioners allege that with corrective measures their

vision ‘is 20/20 or better’ . . . , they are not actually disabled

within the meaning of the Act if the ‘disability’ determination

is made with reference to these [corrective] measures.” Id. at

481. In a case decided the same day, Albertson’s, Inc. v.

Kirkingburg, 527 U.S. 555 (1999), the Court extended that

principle to non-artificial offsetting measures, namely a

vision-impaired person’s “learn[ing] to compensate for the

disability by making subconscious adjustments to the manner

in which he sensed depth and perceived peripheral objects.”

Id. at 565. The Court went on: “We see no principled basis

for distinguishing between measures undertaken with artificial

aids, like medications and devices, and measures undertaken,

whether consciously or not, with the body’s own systems.”

Id. at 565-66. Similarly, a plaintiff’s diligent study or high

background intelligence may serve to mitigate the effects of a

learning-related impairment and allow a high level of

functioning. Yet measuring Singh’s limitations by comparison

to her hypothetical achievements without impairment, to her

fellow medical students, or to others of similarly elite

educational background (individuals selected in part on the

basis of their intelligence and dedication), would place the

same mitigating factors on both sides of the comparison,

rendering them effectively irrelevant.

It is intuitively appealing to measure limitation by

comparing the plaintiff’s condition impaired with her own

condition, unimpaired. There is something poignant, in some

cases even tragic, in the plight of a person cut off from

exceptional achievement by some accident of birth or history.

But the ADA is not addressed to that plight. Rather, it is

designed to enable the disabled, as a group, to participate in

7

mainstream society. The statute notes that “historically,

society has tended to isolate and segregate individuals with

disabilities”; that “people with disabilities, as a group, occupy

an inferior status in our society, and are severely

disadvantaged socially, vocationally, economically, and

educationally”; and that “individuals with disabilities are a

discrete and insular minority who have been . . . relegated to a

position of political powerlessness.” 42 U.S.C. § 12101(a)(2),

(6), (7). Congress found that discrimination denies this group

“the opportunity to compete on an equal basis . . . , and costs

the United States billions of dollars in unnecessary expenses

resulting from dependency and nonproductivity”; the ADA

therefore seeks to offer the disabled “equality of opportunity,

full participation, independent living, and economic self-

sufficiency.” Id. § 12101(a)(8)-(9). A plaintiff who, despite

an impairment, can participate in all major life activities at the

level of the average person in the general population neither is

denied “independent living and economic self-sufficiency,”

nor burdens society with “dependency and nonproductivity,”

nor falls within the kind of “isolate[d] and segregate[d]”

minority described by the statute’s text. The ADA promotes

equal opportunity for the disabled, but only after Toyota

Motor’s “demanding standard” is met.

This understanding gains credence from its adoption by

executive agencies purporting to define “substantially limits.”

The ADA does not delegate authority to any agency to define

“disability” or its component terms by regulation, see Sutton,

527 U.S. at 479, yet both the Equal Employment Opportunity

Commission (“EEOC”) and the Department of Justice

(“DOJ”) have done so. The EEOC describes an individual as

substantially limited if she is either “[u]nable to perform a

major life activity that the average person in the general

population can perform,” or “[s]ignificantly restricted as to the

condition, manner or duration under which an individual can

perform [the major life activity] as compared to the condition,

8

manner, or duration under which the average person in the

general population can perform that same major life activity.”

29 C.F.R. § 1630.2(j)(1)(i)-(ii). The DOJ similarly defines

“substantially limited” as being “restricted as to the

conditions, manner, or duration under which [the major life

activity] can be performed in comparison to most people.” 28

C.F.R., pt. 36, app. B. It illustrates this definition by noting

that “[a] person who can walk for 10 miles continuously is not

substantially limited in walking merely because, on the

eleventh mile, he or she begins to experience pain, because

most people would not be able to walk eleven miles without

experiencing some discomfort.” Id.

Without deciding what respect these regulations are due,

see Sutton, 527 U.S. at 480, we note that the average-person

standard is currently the law in all of our sister circuits to have

addressed the matter, some of those circuits according a

degree of deference (sometimes substantial) to the agency

interpretations. See Wong, 410 F.3d at 1065; Ristrom v.

Asbestos Workers Local 34 Joint Apprentice Comm., 370 F.3d

763, 769 (8th Cir. 2004) (asking whether the plaintiff’s

impairments “limit his ability to learn to a considerable or

large degree as compared to the average person in the general

population”); Palotai v. Univ. of Md. at Coll. Park, 38 F.

App’x 946, 955 (4th Cir. 2002) (comparing the plaintiff to the

“average person in the general population”); Emerson v. N.

States Power Co., 256 F.3d 506, 511 (7th Cir. 2001)

(employing the average-person standard in the context of

learning); Bartlett v. N.Y. State Bd. of Law Exam’rs, 226 F.3d

69, 81-82 (2d Cir. 2000) (“[T]he proper reference group is

‘most people,’ not college freshmen.”); Gonzales v. Nat’l Bd.

of Med. Exam’rs, 225 F.3d 620, 627 (6th Cir. 2000) (“[T]he

ADA compares the performance of an individual who alleges

a restriction in a major life activity to that of ‘most people.’”);

Bowen v. Income Producing Mgmt. of Okla., Inc., 202 F.3d

1282, 1287-88 (10th Cir. 2000) (noting that plaintiff was not

9

substantially limited in his ability to learn given that “even

after his injury, [plaintiff] retained greater skills and abilities

than the average person in general”); Bercovitch v. Baldwin

Sch., Inc., 133 F.3d 141, 156 (1st Cir. 1998) (holding that,

because a student’s “achievement remained consistently

above average,” the plaintiffs had not “met their burden of

showing a probability of success that [he] suffered a

substantial limitation of a major life activity”); Soileau v.

Guilford of Maine, Inc., 105 F.3d 12, 15-16 (1st Cir. 1997)

(“[Limitation] is to be measured in relation to normalcy, or, in

any event, to what the average person does.”).

In contrast, the district court relied on and extended the

EEOC’s separate definition of substantial limitation in the

purported major life activity of working,1 a definition that

compares individuals to “the average person having

comparable training, skills and abilities” in their ability “to

perform a class of jobs or a broad range of jobs in various

classes.” 29 C.F.R. § 1630.2(j)(3)(i). The district court found

this “more specific” comparison to be “more applicable,” and

it therefore read the EEOC’s regulations to require

comparisons “to people of similar age and educational

background” in the activity of learning as well. 368 F. Supp.

2d at 66. This was a misreading of the regulations. The

EEOC includes learning among a list of many major life

activities, 29 C.F.R. § 1630.2(i), and applies the comparable-

training standard only to working. We are reluctant to extend

the EEOC’s comparable-training standard beyond the

agency’s own regulations, especially in light of Toyota

1

Neither the Supreme Court, see Toyota Motor, 534 U.S. at

200, nor this court, see Duncan v. Wash. Metro. Area Transit Auth.,

240 F.3d 1110, 1114 n.1 (D.C. Cir. 2001) (en banc), has yet decided

whether working is a major life activity.

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Motor’s observation that “[n]othing in the text of the [ADA],

our previous opinions, or the regulations suggests that a class-

based framework [of major life activity analysis] should apply

outside the context of the major life activity of working.” 534

U.S. at 200.

Singh defends the district court’s comparison to those of

“similar age and educational background” on the ground that

it would be unreasonable to compare her to “newborns” and

“centenarians.” Singh Reply Br. 23. But the statutory

findings describe the disabled population as “increasing as the

population as a whole is growing older,” 42 U.S.C.

§ 12101(a)(1), which would be inconsistent with a definition

of disability that controls for age. Moreover, an age-based

comparison might have perverse consequences for the ADA’s

application. If a 97-year-old woman with hip problems has

difficulty walking, it would be strange to tell her that she

walks at least as well as the average 97-year-old—that is, not

well at all—and is therefore not disabled or entitled to

reasonable accommodations.

While we need not explore the ADA’s outer reaches to

decide this case, it seems that the law may already provide

sensible means of addressing extreme age or youth. For one

thing, the medical definition of an impairment will frequently

make reference to age; the mental development of a six-year-

old is fine for six-year-olds, but not for their parents. For

another, the ADA requires that the impairment be the

effective cause of the plaintiff’s limitation; a newborn with a

malformed foot cannot walk as well as the average person, but

he is not disabled under the ADA, because even perfectly

healthy newborns cannot walk. Thus, if a dyslexic seven-

year-old cannot learn as well as the average person, a court

might begin by comparing his learning ability to that of the

average seven-year-old, cf. Bercovitch, 133 F.3d at 156, using

11

the comparison to clarify how much limitation the impairment

is responsible for.

Finally, we note that any measure of substantial limitation

that might change based on a plaintiff’s particular educational

environment—e.g., a comparison of “[m]edical students . . . to

their fellow students,” Singh, 368 F. Supp. 2d at 67—would

make disabled status vary with a plaintiff’s current career

choices, and would fail to achieve the ADA’s additional

purpose of providing “clear, strong, consistent, [and]

enforceable standards” to address discrimination. 42 U.S.C.

§ 12101(b)(2) (emphasis added). And comparing the impaired

plaintiff with the counterfactual unimpaired plaintiff would

pose a similar risk of inconsistency, as it would sometimes

require the court to speculate on the degree to which the sort

of compensating mechanisms alluded to in Albertson’s would

have come into play in the absence of the impairment.

Major life activity. In moving for summary judgment,

Singh claimed to be substantially limited in the major life

activity of learning. Mem. P. & A. 5-6. On its own motion,

however, the district court held that the parties—by “citing

grades and scores back and forth”—had “reduced the activity

of learning to the activity of test taking.” 368 F. Supp. 2d at

64. While the court did not resolve whether test-taking is

“itself a major life activity” or merely “a crucial component of

the major life activity of learning,” it concluded that “a

plaintiff with an impairment that substantially limits her

ability to perform on tests has an actionable ADA claim.” Id.

While the district court rightly observed that tests are

often the “gatekeepers to ever higher levels of learning,” id.,

its conclusion was nonetheless error. First, test-taking itself is

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not a major life activity.2 In Toyota Motor, the Supreme

Court defined “major life activities” as “those activities that

are of central importance to daily life,” including “such basic

abilities as walking, seeing, and hearing,” 534 U.S. at 197; see

also id. at 198 (adding that an impairment must “prevent[] or

severely restrict[] the individual from doing activities that are

of central importance to most people’s daily lives” (emphasis

added)).

Second, Toyota Motor requires a plaintiff’s limitation to

be substantial in the context of the major life activity as a

whole, and not that of a subclass within a major life activity.

The petitioner there claimed to be disabled in “performing

manual tasks” because she could not work with her arms at

shoulder level for a substantial period of time. 534 U.S. at

201. The Court, however, asked whether she could “perform

the variety of tasks central to most people’s daily lives,” as

opposed to the class of “tasks associated with her specific

job.” Id. at 200-01. As noted above, Toyota Motor found

such a “class-based framework” inappropriate “outside the

context of the major life activity of working.” Id. at 200.

Plainly picking a comparison activity presents a problem

similar to that of picking a comparison group. Every

subdivision invites parallel subdivisions; if a difficulty with

timed multiple-choice tests qualifies, why not difficulties in

every other element of the learning process? If a substantial

limitation in any element of learning (and of every other

recognized major life activity) were itself sufficient to show

substantial limitation in a major life activity, the number of

2

Because in the trial court Singh claimed only a limitation in

learning, we need not decide whether other subcomponents of

learning, such as reading or “processing information,” constitute

major life activities.

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disabled would balloon far beyond the Court’s understanding

of Congress’s intent.

Though we reject the idea that test-taking per se is a

major life activity (or, equivalently, a “crucial component”

thereof as envisioned by the district court), plaintiff’s test-

taking difficulties can obviously play a role in the

“individualized assessment,” required by Toyota Motor, 534

U.S. at 199; cf. id. at 200-01, of whether her limitation in the

major life activity of learning is substantial. A plaintiff who is

limited in only part of a major life activity—e.g., one who is

severely nearsighted, or who can hear loud noises but not soft

ones—may still be disabled under the ADA, but only if the

limitation is substantial from the perspective of the major life

activity as a whole. “The key obviously is the extent to which

the impairment restricts the major life activity.” Knapp v. Nw.

Univ., 101 F.3d 473, 481 (7th Cir. 1996).

Timeliness. Discrimination under Title III includes “a

failure to make reasonable modifications in policies, practices,

or procedures . . . unless the entity can demonstrate that making

such modifications would fundamentally alter the nature of

[the public accommodation].” 42 U.S.C. § 12182(b)(2)(A)(ii).

GW argues that Singh’s request for reasonable modifications

was untimely, as she did not notify the school of her diagnosis

or disability until a faculty committee had already

recommended her dismissal. It further argues that it had no

duty to modify its program for Singh without notice of her

disability. See Kaltenberger v. Ohio Coll. of Podiatric Med.,

162 F.3d 432, 437 (6th Cir. 1998); see also Crandall v.

Paralyzed Veterans of Am., 146 F.3d 894, 897-98 (D.C. Cir.

1998) (construing Title I); Wynne v. Tufts Univ. Sch. of Med.,

976 F.2d 791, 795 (1st Cir. 1992) (construing the Rehabilitation

Act).

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But Singh is not challenging GW’s actions prior to notice.

She challenges GW’s actions after she informed the Dean of

her diagnosis and requested modifications, when the

University was in a position to respond. Singh, 368 F. Supp.

2d at 70. Thus, we need not address the case of the plaintiff

who, once ousted on terms applicable to a non-disabled

person, knocks on the door anew to seek reinstatement under

the ADA.

While GW invokes a so-called “no second chance”

doctrine to justify its refusal to accommodate Singh, see id. at

70-71, its argument confuses the issue of timeliness with the

underlying reasonableness of the plaintiff’s request. The

precedential authorities cited by GW and amici relied on

findings that the plaintiffs had failed to request any real

accommodation, see Hill v. Kan. City Area Transp. Auth., 181

F.3d 891, 894 (8th Cir. 1999); Siefken v. Arlington Heights, 65

F.3d 664, 666 (7th Cir. 1995); Bugg-Barber v. Randstad US,

L.P., 271 F. Supp. 2d 120 (D.D.C. 2003), that further

accommodations would not have been of any use, see

Southeastern. Cmty. Coll. v. Davis, 442 U.S. 397, 403 (1979);

Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1051 (9th

Cir. 1999); Bercovitch, 133 F.3d at 154-55, that reasonable

accommodations had already been advanced, see

Kaltenberger, 162 F.3d at 436, or that the requested

accommodations were unreasonable under the circumstances,

see Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 88 (2d

Cir. 2004). None of these circumstances is found here. In

particular, GW points to no major commitment of resources

that would be wasted as a result of its having to consider

Singh’s accommodation claim at the time she raised it.

“Otherwise qualified.” GW suggests as an alternative

ground for affirmance that Singh is not “otherwise qualified”

for GW’s medical school, arguing that even had she received

her requested modifications, she would still be incapable of

15

completing her studies. We first note legal uncertainty as to

whether a Title III plaintiff must be “otherwise qualified” in

this sense. Title III of the ADA contains neither the phrase

“otherwise qualified” nor “qualified individual,” but such

phrases are in Titles I and II, as well as in the Rehabilitation

Act. Compare 42 U.S.C. § 12182(a) (“No individual shall be

discriminated against on the basis of disability in the full and

equal enjoyment of the goods, services, . . . or accommodations

of any place of public accommodation . . . .”), with id.

§ 12112(a) (“No covered entity shall discriminate against a

qualified individual with a disability . . . .”), id. § 12132

(referring to a “qualified individual with a disability”), and 29

U.S.C. § 794(a) (“No otherwise qualified individual with a

disability . . . shall, solely by reason of her or his disability,

. . . be subjected to discrimination . . . .”). Some courts have

read an equivalent requirement into Title III. See Mershon v.

St. Louis Univ., 442 F.3d 1069, 1076 (8th Cir. 2006);

Bercovitch, 133 F.3d at 154-55; see also Kaltenberger, 162

F.3d at 435.

Because of a procedural point, however, we need not

address the substantive legal issue. The district court granted

partial summary judgment to Singh on whether she was

otherwise qualified, 368 F. Supp. 2d at 68-69, and GW makes

no claim that the ruling was erroneous on the record then

before the court, consisting most importantly of the deposition

of Singh’s expert witness, Dr. Newman. At trial Dr. Newman

seemed uncertain on the issue, see Joint Appendix (“J.A.”)

644-45, a wavering that GW characterizes as Singh’s “re-

open[ing]” the issue of qualifications. GW Br. 37 n.10. GW

offers no authority holding that a party may unwittingly forfeit

the benefit of partial summary judgment through inartful

questioning of a trial witness. Facts found on partial summary

judgment are taken as established at trial. Fed. R. Civ. P.

56(d). GW neither moved in the district court to vacate the

partial summary judgment, cf. Teleflex, Inc. v. Ficosa N. Am.

16

Corp., 299 F.3d 1313, 1321 (Fed. Cir. 2002), nor otherwise

gave effective notice that it sought to disestablish the prior

finding. A trial court’s reopening of such an issue without

notice to the parties is error, and reversible error if it causes

substantial prejudice. Leddy v. Std. Drywall, Inc., 875 F.2d

383, 386-87 (2d Cir. 1989). It is plainly impermissible for a

party to lie low and then, the record having closed, label the

testimony a “reopening.”

* * *

As we ordinarily review factual findings only under the

deferential standard of clear error, it might seem that with GW

having scored wins on two material legal issues, it would be

easy to affirm the district court’s decision in its favor. But

when the trial court’s route to its findings features self-

contradiction and confusion, we may not so defer. Lyles v.

United States, 759 F.2d 941, 944 (D.C. Cir. 1985). In such a

case, “the appropriate disposition of the case is to vacate the

district court’s judgment and remand for further factfinding.”

United States v. Wragge, 893 F.2d 1296, 1299 (11th Cir.

1990) (per curiam). The opinion below focused on the

elements of impairment and substantial limitation, as do we.

Impairment. In its discussion of impairment, the district

court repeated its previous finding that Singh had “an

impairment of some sort” at the time of her diagnosis, whether

a learning disability or depression. 439 F. Supp. 2d at 13

(citing 368 F. Supp. 2d at 63). The court then doubted

whether Singh had a learning disability, especially in light of

her prior academic success: “Had she the disability [i.e.,

impairment] that she claims to have, her achievement should

have been more consistently impaired [i.e., limited].” Id. Yet

the court also rejected the depression hypothesis, stating that

Singh “offered no evidence that her poor performance was

17

due to depression, and in fact disputed whether she was ever

depressed.” Id. at 14. In the end, the court flatly “decline[d]

to make a finding as to her mental condition.” Id. at 15 n.7.

We cannot tell whether the court fully reversed its earlier

finding of impairment, thus ruling on the point in favor of

GW, or retained some finding of impairment.

Our review is made more difficult by the court’s failure to

state important factual findings specially in its “Findings of

Fact,” cf. Fed. R. Civ. P. 52(a), and by its intermixing of the

legal standards of impairment with those of substantial

limitation. For example, it doubted whether Singh’s “success

in other reading and comprehending tasks . . . is consistent

with a reading disorder,” adding in the next sentence that “[i]n

any event, it is not consistent with a determination that the

impairment substantially affects a major life activity.” 439 F.

Supp. 2d at 13-14.

The same problem infects the court’s refusal, “for two

reasons,” to credit Singh’s primary evidence of impairment,

her diagnosis by Dr. Newman. Id. at 15. First, it found Dr.

Newman to lack experience in diagnosing learning

disabilities, and implied that her testimony therefore “failed to

prove that plaintiff’s difficulties are due to a learning

disability.” Id. This statement could mean that Singh

suffered no learning disorder at all (reading “disability” to

mean impairment), or that if she did, her academic troubles

were caused by other factors (a substantial limitation issue).

Second, the court noted that “a mere diagnosis [of an

impairment] is not sufficient to establish a disability under the

ADA,” id. (footnote omitted)—which is true enough

(assuming our bracketed insertion was intended), but the

observation speaks only to the element of limitation, not

impairment. Thus, we cannot be certain what findings the

court would have made as to impairment had it addressed that

issue independently.

18

Substantial limitation. The district court considered

Singh’s evidence of substantial limitation “overwhelmingly

anecdotal,” id., and gave it little weight, especially as

compared to the testimony of GW’s expert witness, Dr. Rick

Ostrander. Yet in doing so the court mischaracterized Dr.

Ostrander’s testimony, to a degree that undermines the

reliability of its findings.

First, in opposition to Singh’s claim of particularly poor

performance on multiple-choice tests, the court stated that Dr.

Ostrander “did not perceive plaintiff’s record as reflecting

glaring inconsistencies between multiple choice or reading

tasks and tests in other areas or formats.” Id. at 15-16. Dr.

Ostrander testified at length as to Singh’s performance on the

Scholastic Aptitude Test (“SAT”), which he considered

consistent with her intelligence, as measured by the Wechsler

Adult Intelligence Scale (“WAIS”). J.A. 701-08, 711-13.

Yet, though he speculated as to whether Singh’s MCAT

scores were similarly consistent, J.A. 709-11, 713-14, he

specifically refused to find either consistencies or

inconsistencies in her record based upon her performance on

any exams aside from the SAT and WAIS, citing insufficient

data. J.A. 720-26, 728-31, 737-41, 745-46. Dr. Ostrander

testified that the only “objective” data he or anyone could

provide related to whether her SAT scores were consistent

with her IQ as measured by the WAIS. J.A. 722-26, 739-41.

Though the court’s phrase is literally true, it seems to turn a

gap in Dr. Ostrander’s testimony into affirmative support for

“consistency.”

Second, the court described it as Dr. Ostrander’s

“professional opinion that [Singh’s] performance worsened as

she progressed into more competitive environments. As she

became surrounded by smarter peers, he testified, it is not

surprising that she would find herself having to work harder.”

439 F. Supp. 2d at 16. These propositions are found nowhere

19

in Dr. Ostrander’s testimony. While Dr. Ostrander did note

that medicine is an “incredibly demanding field,” J.A. 747,

and that he considered Singh’s performance in the sciences

particularly modest, J.A. 714, he never attempted to compare

her class performance in different environments or over time.

As we have explained, Dr. Ostrander testified that he could

speak only to her results on the SAT and WAIS.

Third, the court appeared to attribute to Dr. Ostrander the

proposition that “based on her Scholastic Aptitude Test

scores, [Singh’s] achievement in medical school was not

necessarily inconsistent with her abilities.” 439 F. Supp. 2d at

16. While Dr. Ostrander testified that Singh’s SAT and

WAIS scores were consistent with each other, as noted above,

he refused to compare her standardized test scores (or her

innate abilities) with her performance on medical coursework.

We do not know how the district court would have

weighed Singh’s evidence against a proper understanding of

Dr. Ostrander’s testimony. This invites a remand. Cf. 19

Moore’s Federal Practice—Civil § 206.03[7] (“A factual

finding will also be clearly erroneous . . . if it is based on a

fundamental confusion of the facts as revealed by the

record.”).

* * *

The judgment below is vacated, and the case is remanded

to the district court for a determination of whether Singh is

disabled under the legal standards described above.

So ordered.