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Case number 22-7103.

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Pablo Abreu, of Balance, versus Howard University.

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Mr. Carlin, for the of Balance.

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Mr. Previs, for the Appellee.

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Good morning.

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Mr. Carlin, you may proceed.

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And I'll just let the parties know in the second case that we'll take a 10-minute break after this argument before we proceed with the arguments in the second case.

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Good morning.

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Your Honours, may I please support, my name is Stuart Carlin and I'm representing Pablo Abreu, the appellant in this case for purposes of the oral argument.

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Only he is pro se, underline case, pro se, I did give him some assistance drafting the brief.

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The complaint was drafted by an attorney.

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Yes.

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Yes, Your Honor, it was drafted.

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He had representation below in the district.

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Yes, all right.

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So in this particular case, the first and prominent issue, I think, is the statute of limitations.

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What statute of limitations applies both to the ADA 504 claim.

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Now, very skilled adversary raised the issue of waivers.

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that head on, because the statute of limitations was one year.

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It was held that it was one year.

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And so these issues, with respect to the three-year statute, four-year statute, one year, plus the polling, was not granted the law.

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But I would respectfully submit that when you deal with the issue of statute of limitations, courts have the discretion to overlook that waiver argument

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And the test has been below where the parties fairly put on notice as to the substance of the issue.

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And here the only issue was the statute of limitations, so it is respectfully submitted that the court in its discretion should look at the statute of limitations because of the importance of it, because the issue was dealt head on and all the parties would notice as to the substance of the issue.

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With respect to the statute of limitations on the ADA in 504.

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Was the district court, I guess the district court wasn't apprised of the Stafford decision below because it was after the district court's decision.

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That's correct.

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All right.

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Why doesn't Stafford resolve the limitations issues?

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At least on the Rehab Act.

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Well, Your Honor, I believe that there needs to be a uniform statute of limitations that applies in basically civil rights case.

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The three-year statute of limitations seems to be the overwhelming circuits have adopted a personal injury statute of limitations, which in this instance would be the three-year statute of limitations.

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I believe that the uniformity is really critical here.

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Under Title VI, under 1983, there's a three-year statute of limitations.

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I want to distinguish between why that should be different in an ADA or even a 504 setting.

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The issues raised biologically is that, well, the ADA 504 isn't

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doesn't deal with the issue of intent.

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But I respectfully submit that it can deal with the issue of intent.

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And you would have cases where on an accommodation issue, first that can, it could be an intent issue on that in any event, as well as under the ADA 504, obviously if someone's not hired plus the person has, let's say bipolar, which is a disability,

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and it was known, it was deliberate, then you would have a three-year statute of limitations plotting and applying to part of the act and a one-year statute.

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It's not really a workable solution.

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It seems to me that uniformity in this particular instance is really critical.

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There should be clear voice from the court as to what the statute of limitations is, and that clear voice would be consistent with Title VI and 1983 civil rights statutes.

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In the event that the three-year statute doesn't apply, it's also respectfully submitted that the default statute, when there's no statute that applies, there is a default statute that was enacted in 1990.

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And that is a four-year statute limitation.

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The argument is that anything that came before

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you would not apply the false statute.

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However, the Supreme Court was clear that if the ADA was amended after and gave a cause of action that didn't previously exist, then the four-year false statute would apply.

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The old law, before

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Congress enacted the amendments to broaden the definition of disability was if it was seriously restricted from activities of central importance to most people in their daily lives, it has to be permanent and long-term.

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In this particular instance, it respectfully submitted that episodic and something that is

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that has, and the other thing is if it had mitigating measures, it also was, it didn't apply.

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In this particular instance, I don't believe my Mr. Abreu would have had a claim.

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Let me interrupt.

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Even if you are correct that it's a three year statute of limitations, and so the claim was timely, there's been an alternative argument

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that the case should be, the dismissal should be affirmed because you failed to state, your client failed to state a claim.

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In two respects, one that there was, it was not pled that Mr. Abreu was a qualified individual with a disability in the sense that I don't see in the complaint where the complaint says, if I had this accommodation,

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I could take this exam the fourth time and pass it.

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And absent that, how is there a plausible claim that he's a qualified individual?

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Well, it was enunciated in the complaint that he was requesting a reasonable accommodation, not just to take it more than three times, which was the standard

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And the boards itself, six at the time, has been reduced since then to four.

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But in addition, he was asking for extra time when he took the test.

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He needed the extra time for several reasons.

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Most importantly, it took time for his medication

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to basically work.

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And it was being adjusted.

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And this was not just for the third test, second test, when the delay occurred.

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So we're at the motion to dismiss stage, where plausibility, whether or not it's plausible, when one construes all facts in plaintiff's favor,

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as to whether or not, not just their test, but whether or not they violated the ADA in the second test when they were put on notice.

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But the complaint doesn't say, I want to take it a fourth time.

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And the fourth time instead of having three hours, I want four hours.

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And if I get those two things, I can pass the test.

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I mean, there's just nothing spelled out just to show, I guess, that it's going to be anything other than just a futile effort to allow him to take it fourth time.

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You see what I'm saying?

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Yes, Your Honor.

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It would be somewhat speculative whether or not he would pass it or not the fourth time.

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But the point I'm trying to make, Your Honor, is that in the second and third test, he was asking for extra test time because of his condition.

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And that was denied.

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He never got the extra test time.

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On the third test, he didn't even get notice of the exam.

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They had until the middle of July to schedule the exam.

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They could have given him extra time.

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I don't read his complaint as saying that

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My claim is that the accommodations that I already received weren't good enough because I should have been given more time on the second test, and I didn't get that.

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I think it could be reasonably inferred.

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The other thing, Your Honor, is the ADA and the Bible form are in the last decision.

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The merits of that claim were not reached by the court below.

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The only thing that was before, Your Honor.

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I understand, but we can affirm on alternative grounds.

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I understand, Your Honor.

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I think a fair reading of the complaint is that he was forced, one could reasonably infer, during all reasonable inferences, favor of the appellant, that his denial of the extension of time to take the exam when he has been diagnosed with severe anxiety and ADHD, one could reasonably infer, but for not getting the extension, that he would have passed.

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That's the crux of the complaint.

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The other argument that's made for failure to state a claim is that it would fundamentally alter the educational program to allow them to take it a fourth time.

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And there's several cases that are cited.

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And most of those cases were decided on summary judgment.

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But when I read them,

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I don't really understand that there would really be discovery or evidence that they're relying upon to make that ruling.

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The courts are saying just the nature of professional schools are such that they have standards, the kind of reputation of the school is at stake, the safety of the community is at stake with nursing and medical

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and other licensing requirements.

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And so it just kind of goes without saying that it would fundamentally alter the program to allow someone to not have to pass a certain course or to take an exam, you know, an additional time.

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Why isn't that a suitable alternative grounds for affirming?

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First, it's a summary judgment issue, Your Honor.

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And the reason why it's a summary judgment issue is that, you know, like Mr. Abreu, expert testimony with the fact that the board itself at the time allowed candidates up to six times, even though it's reduced down to four times.

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Well, that type of discovery was not available because it was dismissed at the pleading stage.

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There's no record as to that at this particular point in time.

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There are many other schools that allow more than three times.

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The accreditation may allow more than three times.

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They may make policy that is three times.

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but it's respectfully submitted at a motion to dismiss stage at the earliest possible stage that the plaintiff is entitled to develop the record below and present the arguments that it would not impact the integrity academically of the program.

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Especially in light of his disability.

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Thank you.

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Judge Rogers, did you have any questions?

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Now, the only question I wondered about was the policy, if council can advise us, how is the policy developed?

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Is this something out of the president's office?

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Is it the board of trustees?

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Is it operating board?

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Your honor, I don't know the answer to that question.

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We haven't had the benefit of the discovery.

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Uh, so, uh, the policy.

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That's a matter of public record one way or the other.

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Yes, your honor, but I don't, I don't know the answer to that question.

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Sorry to say.

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All right.

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We'll give you a couple of minutes.

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Thank you.

[00:14:29] Speaker 04:
Okay.

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Please support.

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Can you please for, um, apparently

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Good morning, Council.

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I'd like to address the issues that Judge Wilkins was addressing, whether the case should be affirmed on the alternative grounds that there would be a fundamental alteration of the university standards and also that plaintiff has not pled

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that he would be qualified and able to pass the exam with a fourth attempt.

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I want to just factually make a couple things clear here.

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The USMLE test is administered by the National Board of Medical Examiner.

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So if you want three hours instead of two hours, that's the entity you go to.

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If you want more opportunities to take the test, then you can ask the Howard University College of Medicine.

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And the Howard University College of Medicine is the one that developed these policies based on its assessment of what is suitable for its academic program.

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I mean, at bottom, what this case is about is

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a regrettable situation where a student is unable to pass a licensing exam after two years of study and three attempts.

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And the university has an obligation to make sure that those people going through its program are academically qualified.

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I understand that.

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I guess to get to the nub of the issue, how is that suitable

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the fundamental alteration issue.

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How is that suitable for resolution on a motion to dismiss rather than a motion for summary judgment?

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I don't see any court of appeals cases that have resolved that on the motion to dismiss.

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They all seem to resolve it on a motion for summary judgment.

[00:16:40] Speaker 04:
Well, Cunningham was resolved on a motion to dismiss.

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And Lipton, which was affirmed by the Second Circuit, was decided on permission to dismiss.

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And furthermore, the other cases that had addressed the issue have addressed it as a matter of law.

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As a matter of law, it's now firmly established by all these decisions that seeking an extension, more opportunities to take the licensing examination is

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is a fundamental alteration of the program.

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Has Howard University over the years, though, changed the number of opportunities that the number of times you can take either the step one or step two exam?

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I just don't know the entire history of what Howard has done for the last 100 years of its College of Medicine.

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But this policy has been in place since

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2015, at least.

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And this is not a unique policy to Howard University, as the cases indicate.

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I know it may not be 100 years, but do you know whether in the last 20 years, it's been different?

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I don't know the answer to that.

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I'd like to give you an answer that it hasn't changed, but I can't represent.

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But what I do know is that it appears to be a firmly established rule of law, that this is a fundamental alteration.

[00:18:17] Speaker 02:
And we haven't heard from- Do all medical schools cap it at three opportunities, the step one exam?

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Well, first of all- Some give more opportunities.

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It's up to each academic institution to determine what's appropriate for that institution.

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And if you read these cases that were cited, what you see there is the courts say, look, we're going to give deference to individual academic institutions to determine what is the appropriate number of times and period of

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passed this examination.

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And there may be differences of opinion among different medical schools.

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But Howard has chosen these rules.

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They're reasonable rules.

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Three times to take an exam, two years to pass an exam.

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When you go see a doctor, you don't want to know that they get the answer wrong the first three times.

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Or it takes them two years to get to the right answer.

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That's what these policies and rules are all about.

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They're about this institution's fundamental academic judgment about what its educational policies are, and that's owed a great deal of deference.

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And I can't imagine anything that would be produced by remanding this poor discovery that would affect that discretion, and council hasn't

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suggested any such facts to you.

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There are no such facts that have been pointed out in the briefings of this case, either in the lower court or in this court.

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So I think this court ought to be able to comfortably rule as a matter of law that there's a fundamental alterations being sought here.

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It's inappropriate.

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And in addition,

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There's no real allegation that Mr. Abreu would have been able to pass an exam a fourth time around.

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There's no evidence or allegation that he has done something different that would enable him to improve on the outcome.

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After three trials.

[00:20:44] Speaker 02:
Let's suppose you had a case where the

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the student had an epileptic, had a seizure during the first two times that they took the exam and that impacted their ability to pass the exam.

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And then they were diagnosed with epilepsy and they took some medication and took it the third time, but didn't pass.

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And then they said, well,

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I think now that, you know, if I get one more chance, because the first two chances that I got weren't really, you know, adequate because I had a seizure in the middle of those two exams, I want a fourth one.

[00:21:34] Speaker 02:
Okay, they do is to adapt raise a question of fact as to whether or not they should get a fourth try as a reasonable accommodation or as a matter of law, we would say no, that would fundamentally alter Howard's academic standards in a way that it's not reasonable.

[00:21:56] Speaker 04:
It could alter the evaluation, but that's not what we have here.

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Remember here.

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Would it be a fundamental alteration where that argument just would be just dismissed out of the box?

[00:22:08] Speaker 04:
No, it wouldn't be a fundamental alteration because the candidate wasn't actually able to complete the exam due to a medical reason.

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I mean, how would university

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is a reasonable institution.

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And it was very, and those facts don't fit here because.

[00:22:26] Speaker 02:
But doesn't that undermine the contention that just as a matter of law, asking a university to grant an additional exam is a fundamental alteration and can't be

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expected under the Rehab Act or the ADA?

[00:22:53] Speaker 04:
Yes, it affects it under those facts.

[00:22:56] Speaker 04:
But the facts here, I haven't been able to get this out.

[00:22:59] Speaker 02:
Well, if it's a matter, if you win as a matter of law, then the facts don't matter, right?

[00:23:05] Speaker 04:
Well, as a matter of law and circumstances like those here where the university accommodated him, it gave him leaves of absence.

[00:23:12] Speaker 04:
It gave him additional time.

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It did a lot for him.

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It didn't, you know, the university is not out there to get students and throw them out.

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The university wants these students to succeed, but it also has a responsibility to produce qualified people.

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And in this case, the university accommodated Mr. Abbott.

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in several ways.

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And there was no mid-exam breakdown.

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He didn't have a heart attack.

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I understand your argument.

[00:23:40] Speaker 02:
Maybe in the time that you have, you should address Stafford and the statute of limitations.

[00:23:46] Speaker 01:
Just one quick question before you get to limitations.

[00:23:52] Speaker 01:
I thought fundamental alteration was a defense now.

[00:23:58] Speaker 04:
It's a matter of law.

[00:24:01] Speaker 04:
I think it is a defense.

[00:24:04] Speaker 04:
But actually, it's an element of the cause of action.

[00:24:08] Speaker 04:
The statute says that

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You're not entitled to it.

[00:24:13] Speaker 01:
I thought it said something like, unless the employer or institution or whoever proves that this would.

[00:24:21] Speaker 04:
It doesn't say unless the institution proves.

[00:24:23] Speaker 04:
It says unless it would be a fundamental alteration.

[00:24:26] Speaker 04:
So it's part of the plaintiff's cause of action to show that there's more and less.

[00:24:32] Speaker 01:
If it were a defense, we couldn't resolve it on motion to dismiss, correct?

[00:24:37] Speaker 04:
You could.

[00:24:38] Speaker 04:
Why not?

[00:24:39] Speaker 04:
You can resolve, I mean, statute of limitations is an affirmative defense.

[00:24:44] Speaker 04:
That's resolved all the time on appeal, on motions to dismiss.

[00:24:49] Speaker 04:
But the facts are clear.

[00:24:51] Speaker 01:
Not if the defendant doesn't raise the defense.

[00:24:56] Speaker 04:
Well, the university raised its defense, this defense and its motion to dismiss.

[00:25:00] Speaker 04:
This was a defense that it raised.

[00:25:03] Speaker 04:
So it was addressed.

[00:25:04] Speaker 04:
It raised it.

[00:25:05] Speaker 04:
The lower court found it unnecessary to reach the issue.

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because it decided the case on the grounds of statute of limitations.

[00:25:14] Speaker 04:
But the arguments were made, and the Court of Appeals and a lower court are entitled to grant summary judgment as a matter of law and an affirmative defense.

[00:25:26] Speaker 01:
Without an answer?

[00:25:29] Speaker 04:
Well, a motion to dismiss serves the purpose of an answer situation.

[00:25:35] Speaker 04:
Okay.

[00:25:35] Speaker 04:
Okay, so with respect to Stafford,

[00:25:38] Speaker 04:
Stafford is a different statute, and it has had a different logic to it.

[00:25:47] Speaker 04:
The logic of Stafford is that discrimination, intentional discrimination, is like a personal injury tort.

[00:25:58] Speaker 04:
It sounds in tort.

[00:26:00] Speaker 04:
And that goes way back.

[00:26:01] Speaker 04:
If you look at the Wilson versus Garcia case, and you look at that,

[00:26:05] Speaker 04:
The court was talking there about a Civil War era statute.

[00:26:10] Speaker 04:
It was talking about intentional discrimination.

[00:26:14] Speaker 04:
It was talking about all kinds of atrocities, lynching, whipping, those sorts of things.

[00:26:24] Speaker 04:
And it was quite natural for an intentional discrimination claim

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to be viewed in some respect as sounding in tort, because that's what happens.

[00:26:36] Speaker 04:
That's not true in a reasonable accommodation case or in an ADA case generally where there can be liability without discriminatory intent.

[00:26:51] Speaker 04:
So the statutes and the logic are completely different.

[00:26:56] Speaker 04:
One of the concerns in Stafford was that all the other circuits had ruled that the personal injury statute applies.

[00:27:05] Speaker 04:
That's not the case here.

[00:27:07] Speaker 04:
I mean, we have, we know the Fourth Circuit and the Ninth Circuit follow the State United Discrimination Law statutes and limitations.

[00:27:18] Speaker 04:
And we know that several other circuits have indicated that if there was a,

[00:27:24] Speaker 04:
a very close mirror state anti-discrimination statute that will control.

[00:27:30] Speaker 04:
So in this case, if you rule in favor of three year statute of limitations, then you're actually out of sync with most of the other circuits that have addressed the issue.

[00:27:42] Speaker 04:
So I think the statutes are very different.

[00:27:48] Speaker 04:
And the weight of authority is different.

[00:27:51] Speaker 01:
Stafford, rightly or wrongly, it already held the governing limitations period for Title VI.

[00:27:59] Speaker 01:
For Title VI, which is a pension.

[00:28:01] Speaker 01:
And the Rehab Act adopts remedies, procedures, and rights of Title VI.

[00:28:09] Speaker 01:
So is your argument that a statute of limitations is not a remedy, procedure, or right?

[00:28:17] Speaker 04:
Well, remember, the basic principle is you have to look at the most analogous state statute.

[00:28:23] Speaker 04:
The most analogous state statute.

[00:28:25] Speaker 01:
No, for the Rehab Act, you have to look to Title VI.

[00:28:32] Speaker 01:
Unless the statute of limitations is not a remedy procedure or right, seems like a pretty tough position for you.

[00:28:43] Speaker 01:
Well, Stafford did not

[00:28:46] Speaker 04:
address potential discrimination.

[00:28:49] Speaker 04:
And the weight of authority is go to the state statute.

[00:28:55] Speaker 04:
And a failure to accommodate is

[00:29:01] Speaker 04:
not like intentional discrimination.

[00:29:04] Speaker 04:
You're not doing something affirmatively to somebody else.

[00:29:07] Speaker 04:
You're trying to ameliorate pre-existing condition or circumstance.

[00:29:14] Speaker 04:
So the whole logic of

[00:29:17] Speaker 04:
This kind of claim is inconsistent with Stafford and its rule.

[00:29:21] Speaker 04:
And I don't see anything in Title VI that has a remedy for failure to accommodate.

[00:29:28] Speaker 04:
So there's no remedy under Title VI for failure to accommodate.

[00:29:32] Speaker 04:
There is a remedy under the ADA.

[00:29:34] Speaker 04:
And let's not forget that the DCHRA has been construed by this court as being

[00:29:42] Speaker 04:
I really identical in fact, the DCHRA is not very as elaborate as the ADA is or the or the Rehab Act is, but the courts have ruled that we're going to import all of that law into the DCHRA.

[00:29:59] Speaker 04:
So how could that not be the most analogous station?

[00:30:04] Speaker 02:
All right, Judge Rogers, did you have any questions?

[00:30:09] Speaker 00:
No, thank you.

[00:30:11] Speaker 02:
All right, thank you, Council.

[00:30:16] Speaker 02:
All right, we'll give you, Mr. Carlin, two minutes for rebuttal.

[00:30:23] Speaker 03:
I just want to just touch on the scenario that Your Honor presented, and there was candidly an admission by my adversary when you posed a question about someone who had epilepsy.

[00:30:38] Speaker 03:
My client,

[00:30:39] Speaker 03:
but was sick too.

[00:30:42] Speaker 03:
He had anxiety which placed him in the 98th percentile.

[00:30:48] Speaker 03:
He was basically an emotional wreck when he was taking those exams.

[00:30:52] Speaker 03:
I would respectfully submit that there's nothing distinguishing in terms of the logic that would apply to my client that would apply to someone who has epilepsy and when the school would consider a fourth exam.

[00:31:10] Speaker 03:
uh, period stop.

[00:31:11] Speaker 03:
I mean, there's, there's just no difference.

[00:31:13] Speaker 03:
And I would respectfully submit that, uh, in, in this particular instance, besides him asking for extra time, um, to him, which would have, uh, allowed him to adjust medications, lowered his anxiety level that was denied besides that.

[00:31:30] Speaker 02:
Are you, there's no eating in the, um, there's no allegation in the complaint that, that,

[00:31:40] Speaker 02:
Howard had to purview to give him extra time on the exam.

[00:31:45] Speaker 03:
I believe it's set forth in paragraph 36 and 37 where extensions were requested by an attorney in the amended complaint.

[00:31:59] Speaker 02:
All right.

[00:32:00] Speaker 02:
Anything else?

[00:32:01] Speaker 02:
No.

[00:32:02] Speaker 02:
All right.

[00:32:02] Speaker 02:
We'll take the case under advisement.

[00:32:04] Speaker 02:
We're going to take a 10-minute recess for the benefit of our ASL interpreter.

[00:32:09] Speaker 02:
and then we will hear the parties in the next case.

[00:32:12] Speaker 02:
Thank you.