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

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 1, 2011 Decided December 9, 2011

No. 09-7032

CAROLYN SINGH,

APPELLANT

v.

GEORGE WASHINGTON UNIVERSITY

SCHOOL OF MEDICINE AND HEALTH SCIENCES, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:03-cv-01681)

Kate Bushman, Supervising Attorney, argued the cause as

amicus curiae in support of appellant. With her on the briefs

were Steven H. Goldblatt, appointed by the court, and

Elizabeth A. Spavins and Stephanie B. Lezell, Student

Counsel.

Carolyn Singh, pro se, filed briefs for appellant.

Henry Morris Jr. argued the cause for appellees. With

him on the brief was Kristine J. Dunne.

Robert A. Burgoyne and Ada Meloy were on the brief for

amici curiae American Council on Education, et al.

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Before: ROGERS and GARLAND, Circuit Judges, and

WILLIAMS, Senior Circuit Judge.

Opinion for the Court by Circuit Judge ROGERS.

ROGERS, Circuit Judge: This appeal is before the court

following a remand. In the first appeal the court established

the legal standards the district court must apply in

determining whether Carolyn Singh, a former medical

student, had an impairment that substantially limited her in

the major life activity of learning under the Americans with

Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq.

Specifically, the court rejected both the district court’s use of

a comparison group of other medical students, holding that

the correct comparator was the average person, and its focus

on test-taking, holding that the major life activity at issue was

Singh’s ability to learn. Singh v. Geo. Wash. Univ. Sch. of

Med. & Health Scis. (“2007 Singh Appeal”), 508 F.3d 1097,

1100, 1104 (D.C. Cir. 2007). Having failed to prevail again,

Singh, assisted by amicus, contends that on remand the

district court erred by failing to apply the 2008 amendments

to the ADA and in relying on her prior academic achievement

in assessing whether she suffered from a disability under the

ADA. Because Singh fails to show legal or clear factual error

by the district court, see Cuddy v. Carmen, 762 F.2d 119, 123

(D.C. Cir. 1985), we affirm.

I.

During Singh’s time as a medical student at George

Washington University, her poor grades placed her continued

enrollment at risk on four occasions. She had been admitted

to the University’s Decelerated Program for students with

weaker academic records, in view of her poor performance on

the standardized medical-school entrance exam (“MCAT”).

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Students in the Decelerated Program have two years to

complete the curriculum that regular-matriculation students

finish in their first year. The University requires Decelerated-

Program students to maintain adequate academic performance

and publishes academic regulations that set out a procedure

for dismissal in the event of poor performance.

Despite Singh’s overall academic success in high school

and college, she quickly encountered difficulty in medical

school. Beginning in her first semester in Fall 2000 and

continuing throughout her six semesters at the University,

Singh received failing grades in multiple courses and failed to

satisfy the University’s standard-deviation requirement in

others. Nevertheless, Singh maintained an active

extracurricular schedule throughout this period, including

serving as the social chair of the University’s student council,

participating in multiple medical associations as the student

representative, and enrolling in a music course. Singh’s

pattern of poor academic performance was evaluated by the

Medical Student Evaluation Committee (“MSEC”) on three

occasions. On the first two occasions, she was advised to re-

take certain courses, to reduce or eliminate her extracurricular

activities, to improve her study habits, and generally to

concentrate on her medical studies. In the last review, when

her grades did not improve, the MSEC recommended to the

Dean of the medical school that she be dismissed. Singh was

“quite distressed” by this turn of events, Trial Tr. Nov. 22,

2005, at 150, and sought advice from the University’s

Disability Support Services, which referred her to Dr. Anne

Newman for psycho-educational testing. After interviewing

Singh about her background and administering diagnostic

tests, Dr. Newman concluded that Singh had a reading

disorder – dyslexia – as well as a mild processing-speed

disorder. Report of Anne C. Newman, Ph.D., on Feb. 19,

2003 interpretative session (“Newman Report”), at 7. Dr.

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Newman recommended a number of academic

accommodations, psychotherapy, investigation of the

appropriateness of psychostimulant medication, and a

reduction in volunteer activities.

Meanwhile, the Dean of the medical school had received

the MSEC’s dismissal recommendation and he concurred. On

February 11, 2003, the Dean met with Singh and her mother

to notify Singh of the MSEC’s recommendation and his

decision to dismiss her. Singh informed the Dean of Dr.

Newman’s pending report, which she forwarded to the Dean

two weeks later. On March 5, 2003, the Dean officially

notified Singh by letter of her dismissal from the University;

the Dean later testified that Dr. Newman’s report “played no

role” in his decision to dismiss Singh. Trial Tr. Nov. 23,

2005, at 403–04.

In 2003, Singh filed a complaint alleging that the

University had unlawfully discriminated against her in

violation of the ADA. The district court granted summary

judgment in part for Singh, finding that “[a] reasonable fact

finder could only conclude that plaintiff suffers from some

kind of mental impairment,” but denied summary judgment as

to whether her learning was substantially limited. Singh v.

Geo. Wash. Univ., 368 F. Supp. 2d 58, 63 (D.D.C. 2005).

After a bench trial, the district court found that Singh did not

have a disability as defined under the ADA and entered

judgment for the University. Singh v. Geo. Wash. Univ. Sch.

of Med. & Health Scis., 439 F. Supp. 2d 8, 16 (D.D.C. 2006).

Finding that Singh had failed to show that her impairment had

caused a substantial limitation on learning, the district court

stated that, “[t]o the contrary, [Singh] appear[ed] quite able to

succeed in the major life activity of learning, including test-

taking in general.” Id. at 14.

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On appeal, this court held that the proper comparison

group for the substantial-limitation determination was the

general population, not other people of comparable age and

educational background as the district court had ruled, and

that the relevant major life activity was learning, not test-

taking. 2007 Singh Appeal, 508 F.3d at 1100, 1104. The

court remanded the case, stating that the district court had

“fail[ed] to state important factual findings specially,”

“intermix[ed] . . . the legal standards of impairment with those

of substantial limitation,” and mischaracterized the testimony

of Dr. Rick Ostrander, the University’s expert witness. Id. at

1106–07.

On remand, the district court revised and clarified its

analysis but reached the same result as it had in 2005. Singh

v. Geo. Wash. Univ. Sch. of Med. & Health Scis. (“2009

Remand Opinion”), 597 F. Supp. 2d 89, 90 (D.D.C. 2009). In

applying the comparison-group and major-life-activity

standards established by this court and in concluding that

Singh had failed to demonstrate a disability under the ADA,

the district court concluded that it did not need to decide

whether the alleged limitation was “substantial” because

Singh “ha[d] not shown that her limitation [was] a result of

her impairment.” Id. at 96. The district court found that

Singh’s expert, Dr. Newman, had failed “to establish the

requisite causal link,” and that Singh’s “spotty, anecdotal

corroborative evidence [did] not suffice” to bolster that

causation evidence. Id. at 97. Singh appeals.

II.

The ADA prohibits discrimination against disabled

individuals. 42 U.S.C. § 12182(a). An individual seeking to

establish a disability must prove, by a preponderance of the

evidence, see Flemmings v. Howard Univ., 198 F.3d 857, 861

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(D.C. Cir. 1999), that (1) she suffers from a physical or

mental impairment; (2) the impairment relates to a “major life

activity,” and (3) the impairment “substantially limits” her in

one or more “major life activities,” 42 U.S.C. § 12102(1); see

Haynes v. Williams, 392 F.3d 478, 482 (D.C. Cir. 2004). As

established in the prior proceedings, the impairment at issue is

Singh’s learning disorder, and the corresponding major life

activity is learning.

A.

Effective January 1, 2009, Congress amended the ADA.

See ADA Amendments Act of 2008 (“ADAA”), Pub. L. No.

110-325, 122 Stat. 3553 (2008). Congress rejected the

Supreme Court’s prior holding that the ADA set forth a

“demanding standard for qualifying as disabled,” Toyota

Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 197 (2002),

as well as the holding in Sutton v. United Air Lines, Inc., 527

U.S. 471, 475 (1999), that courts should account for

mitigating measures when making disability determinations.

ADAA, § 2, 122 Stat. at 3554. The ADAA provides that the

“determination of whether an impairment substantially limits

a major life activity shall be made without regard to the

ameliorative effects of mitigating measures such as . . .

learned behavioral or adaptive neurological modifications.”

Id. § 4, 122 Stat. at 3556.

Singh contends that the district court erred in failing to

apply the ADAA, which was the law in effect at the time of

its decision on remand. The University objects to our

consideration of this contention on two grounds: forfeiture

and retroactivity. We need not address forfeiture because the

second objection is well taken.

Courts disfavor retroactive application of laws absent

clear expression of congressional intent to do so. See

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Landgraf v. USI Film Prods., 511 U.S. 244, 264, 272 (1994).

This anti-retroactivity principle is grounded in the notions of

fair notice and reasonable reliance. See id. at 265. In

determining whether a statute can operate retroactively, the

court asks “whether the new provision attaches new legal

consequences to events completed before its enactment,” id.

at 270, a question that may turn on the nature of the relief

sought by the plaintiff. “When the intervening statute

authorizes or affects the propriety of prospective relief,

application of the new provision is not retroactive.” Id. at

273. Damages constitute retrospective relief and thus raise

retroactivity concerns. See id. at 281–84. The statute in

Landgraf posed retroactivity problems because it expanded

the types of relief available to plaintiffs. See id. at 253–54.

Although the Supreme Court recognized that the new

compensatory-damages provision “only reach[ed]

discriminatory conduct already prohibited by Title VII,” and

thus the defendant was already on notice that the relevant

conduct was unlawful, the new provision “affect[ed] the

liabilities of defendants,” impacted the “private parties’

planning,” and “attach[ed] an important new legal burden to

that conduct.” Id. at 282–83. As such, retroactive application

was not appropriate. Id. at 284. As a cautionary note, the

Court instructed that although “[i]t will frequently be true . . .

that retroactive application of a new statute would vindicate

its purpose more fully,” that “consideration . . . is not

sufficient to rebut the presumption against retroactivity.” Id.

at 285–86.

This court held in Lytes v. D.C. Water & Sewer Authority,

572 F.3d 936, 938 (D.C. Cir. 2009), that Congress did not

intend the ADAA to operate retroactively, pointing in

particular to Congress’ decision to set an effective date in the

future. See also Fikes v. Wal-Mart, Inc., 332 F. App’x 882,

883 n.1 (11th Cir. 2009); EEOC v. Argo Distrib., LLC, 555

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F.3d 462, 469 n.8 (5th Cir. 2009); Kiesewetter v. Caterpillar

Inc., 295 F. App’x 850, 851 (7th Cir. 2008). In Lytes, the

plaintiff had sought retrospective relief, including damages

and back pay. 572 F.3d at 939. Singh emphasizes that she

does not seek monetary damages, see Singh, 368 F. Supp. 2d

at 72, and that the injunctive relief she seeks would operate in

the future and is thus prospective. To gain that relief,

however, Singh must first be reinstated, overturning the

University’s decision in 2003 to dismiss her; her complaint

seeks a declaratory judgment that she “is a student in good

standing” at the University. Compl. at 12. Much as with a

request for damages, reinstatement is backward-looking and

seeks to remedy a past unlawful act. See Lytes, 572 F.3d at

939, 945; Dave v. Lanier, 681 F. Supp. 2d 68, 72 n.3 (D.D.C.

2010). Applying the ADAA to the University’s decision in

2003 to dismiss Singh would be changing the laws that

governed the University’s liability at that time, imposing a

new legal burden on the University’s past conduct. As such,

its application would be impermissibly retroactive.

B.

Singh also contends that the district court clearly erred on

remand in finding that her impairment did not substantially

limit her ability to learn. Specifically she takes issue with the

district court’s consideration of her past academic

achievement as compelling the conclusion that she failed to

show causation. She emphasizes that the ADA requires proof

of a present, not past, substantial limitation.

The district court’s decision on remand rested on the

factual findings that: (1) Singh had an impairment; (2) Singh

presented evidence of a limitation on her learning ability; (3)

numerous potential causes existed to explain that limitation;

and (4) Singh failed to demonstrate by a preponderance of the

evidence that her impairment, and not the other factors,

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caused that limitation. Based on these findings, the district

court concluded that Singh had failed to prove causation, one

of the three elements necessary to show the presence of a

disability under the ADA. See 2009 Remand Opinion, 597 F.

Supp. 2d at 96–97. We need not decide whether Singh had an

impairment within the meaning of the ADA, or whether that

alleged impairment substantially limited a major life activity.

The district court’s factual finding on causation, see Daniels

v. Hadley Memorial Hosp., 566 F.2d 749, 756 n.49 (D.C. Cir.

1977), is not clearly erroneous and that finding alone dooms

her case. The district court identified “many reasons aside

from [Singh’s] impairment that might explain why [she] has

done relatively poorly on extremely time-limited tests.” 2009

Remand Opinion, 597 F. Supp. 2d at 96. For example, the

district court listed anxiety from the difficulty of the medical

school academic environment, “her involvement in extra-

curricular activities,” which a number of University advisors

had suggested she curtail or eliminate in view of her academic

difficulties, and poor study habits as possible causes of her

poor performance. Id. Although the district court prefaced

each of these potential causes with the word “perhaps,” id., it

referenced record evidence for each of the possible causes,

including that Singh was overextended in extracurriculars, id.

at 96 n.7, and had poor study habits, such as her admission

that she sang along to music while studying, id. at 96 n.8. The

district court also identified record evidence of yet other

possible causes for Singh’s poor performance, such as Singh’s

own testimony that attributed her academic problems “at least

in some degree to . . . being upset over the September 11th [,

2001 terrorist] attacks.” Trial Tr. Nov. 21, 2005, at 93–94

(cited by 2009 Remand Opinion, 597 F. Supp. 2d at 97 n.10).

The district court did not ignore Singh’s claim “that she

consistently perform[ed] much lower on multiple-choice tests

than on other types of assessments,” 2009 Remand Opinion,

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597 F. Supp. 2d at 97, or the corroborative evidence Singh

presented, but found it to be “spotty” and “anecdotal” and

insufficient to establish the necessary causal link. Id.

Specifically, the district court found that the evidence of her

past difficulties with multiple-choice testing failed to close the

causal gap between her mental impairment and her limitation

in learning, as distinct from test-taking alone. This conclusion

holds true regardless of whether Singh was at the top or

bottom of her high school class or aced or bombed her

MCAT, because that past academic performance had no

bearing on causal factors such as Singh’s extracurricular

involvements and poor study habits. Given the totality of the

evidence, the district court did not clearly err in concluding

that Singh had failed to meet her burden to demonstrate that

her impairment caused her limitation on learning.

To establish a disability under the ADA, a plaintiff must

establish not only that she suffers from an impairment but also

that the impairment causes a significant limitation on a major

life activity. Singh presented evidence that she suffered from

a mental impairment and experienced a limitation on learning

that was evident while she was in medical school; whether or

not she did, multiple factors existed to explain the cause of

that limitation. Accordingly, because the district court did not

clearly err in finding that Singh failed to establish that her

asserted impairment caused her asserted learning limitation,

we affirm the judgment of the district court.