Rogers, Judge John M.

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Cornell University ILR School 
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ADAAA Case Repository Labor and Employment Law Program 
September 2014 
Kirk D. Jenkins, Plaintiff-Appellant, v. National Board of Medical 
Examiners, Defendant-Appellee. 
Judge John M. Rogers 
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Kirk D. Jenkins, Plaintiff-Appellant, v. National Board of Medical Examiners, 
Defendant-Appellee. 
Keywords 
Kirk D. Jenkins, National Board of Medical Examiners, 08-5371, Decision on Appeal, Failure to 
Accommodate, Learning Disability/ADHD, Reading, Healthcare, Employment Law, ADAAA 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/adaaa/79 
Case: 08-5371 Document: 00615394550 Filed: 02/11/2009 Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
No. 08-5371 F I L E D
UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT
FEB 1 1 2009 
LEONARD GREEN, Clerk
KIRK D. JENKINS, )
Plaintiff-Appellant, ON APPEAL FROM THE 
UNITED STATES DISTRICT 
COURT FOR THE WESTERN 
DISTRICT OF KENTUCKY
v.
)
NATIONAL BOARD OF MEDICAL EXAMINERS, )
Defendant-Appellee.
)
)
)
BEFORE: NORRIS, BATCHELDER, ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Kirk Jenkins is a third-year medical student who seeks additional 
time on the United States Medical Licensing Examination (“USMLE”) as an ADA accommodation 
for a diagnosed reading disorder. Relying on Toyota Motor Manufacturing, Kentucky, Inc. v. 
Williams, 534 U.S. 184 (2002), the district court found that Jenkins did not qualify as disabled under 
the Americans with Disabilities Act. On September 25, 2008, Congress passed a law repudiating 
Toyota’s strict standard for finding a disability under the ADA and expressing its intent that the 
ADA be construed in favor o f broad coverage, effective January 1, 2009. ADA Amendments Act 
of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). Because this suit for injunctive relief was 
pending on appeal when the amendments became effective, the amendments apply to this case. We 
therefore remand the case to the district court for further consideration in light of the ADA 
Amendments Act.
Case: 08-5371 Document: 00615394550 Filed: 02/11/2009 Page: 2
No. 08-5371
Jenkins v. Nat 7 Bd. o f  Med. Examiners .
I.
Kirk Jenkins is a third-year medical student at the University o f Louisville School o f 
Medicine. Jenkins was diagnosed with a reading disorder at a young age and has received formal 
and informal accommodations on examinations at each stage of his education. Jenkins sought and 
received fifty percent additional time on the ACT and MCAT examinations. In preparation for Step 
1 o f the USMLE, Jenkins submitted a request for accommodation to the National Board of Medical 
Examiners (“NBME”). NBME denied this request after conducting several levels of review. J enkins 
sought an injunction in district court. The District Court for the Western District of Kentucky denied 
relief. Jenkins v. N at7 Bd. o f Med. Examiners, No. 3:07-CV-698-H, 2008 WL 410237 (W.D. Ky. 
Feb. 12, 2008). Applying the standard set forth in Toyota Motor Manufacturing, Kentucky, Inc. v. 
Williams, 534 U.S. 184 (2002), the court pressed Jenkins to demonstrate how his reading difficulties 
limited his ability to perform tasks central to most people’s daily lives. Id. at *4-8. The court 
focused on such activities as reading menus and newspapers— all things which Jenkins can do 
capably, although slowly. Id. at *6-7. The court concluded that “[tjhere is ample evidence that 
Jenkins processes written words slowly, and that his condition prevents him from succeeding where 
success is measured by one’s ability to read under time pressure. But Jenkins’ inability to identify 
meaningful tasks central to most people’s daily lives that he is precluded from performing due to his 
condition must be fatal to his claim of disability under the ADA.” Id. at *7-8 (internal quotation 
marks omitted).
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Jenkins v. Nat 7 Bd. o f  Med. Examiners
II.
A.
Because this case involves prospective relief and was pending when the amendments became 
effective, the ADA must be applied as amended. The ADA Amendments Act took effect on January 
1,2009. Pub.L. No. 110-325, §8. Rather than seeking damages for some past act o f discrimination 
by NBME, Jenkins seeks the right to receive an accommodation on a test that will occur in the 
future, well after this effective date. It is well settled that a court applies “the law in effect at the 
time it renders its decision, unless doing so would result in manifest injustice or there is statutory 
direction or legislative history to the contrary.” Bradley v. School Bd. o f City o f Richmond, 416 U.S. 
696, 711 (1974); accord Republic Steel Corp. v. Costle, 581 F.2d 1228, 1233 (6th Cir. 1978). 
Because Jenkins seeks prospective relief, no injustice would result from applying the amended law. 
Nor does the statute direct that the amendments should not apply to a pending case for prospective 
relief. In a case parallel to this one, the Supreme Court applied the newly-passed Civil Rights Act 
of 1960 to a voting rights suit for declaratory and injunctive relief, where the district court had 
dismissed the case under the then-operative Civil Rights A ctof 1957. United States v. Alabama, 362 
U.S. 602, 604 (1960). The Court held that such a case “must be decided on the basis o f law now 
controlling.” Id. (citations omitted).
Several courts that have addressed the issue of the Act’s applicability to pending cases have 
taken the position that the amendments to the ADA are not applicable where the actions giving rise
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No. 08-5371
Jenkins v. N at’lBd. o f Med. Examiners
to the litigation occurred before the effective date of the amendments.1 See, e.g., EEOC v. Argo 
Distribution LLC, —  F.3d — , 2009 WL 95259, at *5 n.8 (5th Cir. Jan. 15, 2009); Kiesewetter v. 
Caterpillar, Inc., No. 08-2140, 2008 WL 4523595 (7th Cir. Oct. 9, 2008) (not selected for 
publication). However, those cases rely on reasoning that is not applicable to our situation. Those 
cases involve suits for damages and rely, either directly or implicitly, on the reasoning set forth in 
Landgraf v. USI Film Products, 511 U.S. 244 (1994). Landgraf held that provisions of the Civil 
Rights Act o f 1991, which created a right to compensatory and punitive damages for violations of 
Title VII, did not apply to cases already pending on appeal when the statute was enacted. Id. at 247. 
However, Landgraf does not stand for the principle that new laws should never apply to cases 
pending on appeal. The Landgraf Court noted, “A statute does not operate ‘retrospectively’ merely 
because it is applied in a case arising from conduct antedating the statute’s enactment or upsets 
expectations based in prior law. Rather, the court must ask whether the new provision attaches new 
legal consequences to events completed before its enactment.” Id. at 269-70 (internal citations 
omitted). The Court’s holding in Landgraf was based on the fact that “damages are quintessentially 
backward looking’ ’ and, in that case, “would attach an important new legal burden to [past] conduct.” 
Id. at 282-83. However, “[wjhen the intervening statute authorizes or affects the propriety of 
prospective relief, application of the new provision is not retroactive.” Id. at 273. The Landgraf 
Court cited Bradley, noting that the principle directing “a court [to] ‘apply the law in effect at the
1A number o f opinions that were issued after the Act’s enactment but prior to its effective 
date noted that the Act did not apply. See, e.g, Verhoffv. Time Warner Cable, Inc., Nos. 07-4265, 
07-4348,2008 WL 4691794, at *2 n.2 (6th Cir. Oct. 24,2008).
Case: 08-5371 Document: 00615394550 Filed: 02/11/2009 Page: 4
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No. 08-5371
Jenkins v. N at’l Bd. o f  Med. Examiners
time it renders its decision,’ even though that law was enacted after the events that gave rise to the 
suit,” was as well-established as the presumption against retroactivity. Id. at 273 (citing Bradley, 
416 U.S. at 711).
The fact that Jenkins has requested attorney’s fees does not convert this claim for injunctive 
relief into a claim for damages. The Supreme Court has observed that attorney’s fees determinations 
are collateral to the main cause of action. Landgraf 511 U.S. at 277. The Court explicitly explained 
in Landgraf that a claim for attorney’s fees was not the type of case in which a presumption against 
retroactivity applies. Id. at 277.
B.
Because the district court relied on the Supreme Court’s now-repudiated decision in Toyota 
Motor Manufacturing, Kentucky, Inc. v, Williams, 534 U.S. 184 (2002), the district court’s legal 
conclusions require reconsideration. The district court found that the record contained evidence that 
Jenkins reads written language in a slow and labored fashion when compared to the general public. 
According to the ADA, an individual is disabled if  he has “a physical or mental impairment that 
substantially limits one or more o f the major life activities o f such individual.” 42 U.S.C. § 12102 
(2006) (amended 2009) (emphasis supplied). Reading is a major life activity under the existing 
precedent o f this circuit and the amended ADA. See Gonzales v. Nat 7 Bd. ofMed. Examiners, 225 
F.3d 620, 626 (6th Cir. 2000); 42 U.S.C. § 12102(2)(A) (2006) (amended 2009). Jenkins’s status 
under the ADA therefore turns on the definition o f “substantial limitation.”
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No. 08-5371
Jenkins v. N at’l Bd. o f  Med. Examiners
Congress’s recent amendments contain operative language governing the definition of
“substantial limitation.” In the ADA Amendments Act, Congress made clear that it intends for the
ADA to give broad protection to persons with disabilities and that the Supreme Court’s holding in
Toyota is at odds with Congress’s intent. Congress stated in the findings o f the Act that various
Supreme Court holdings “have narrowed the broad scope of protection intended to be afforded by
the ADA, thus eliminating protection for many individuals whom Congress intended to protect’ ’ with
the result that “lower courts have incorrectly found in individual cases that people with a range of
substantially limiting impairments are not people with disabilities.” Pub. L. No. 110-325, § 2(a)(4),
(6). Congress stated that one purpose of the Act was:
to reject the standards enunciated by the Supreme Court in Toyota Motor 
Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), that the terms 
“substantially” and “major” in the definition of disability under the ADA “need to be 
interpreted strictly to create a demanding standard for qualifying as disabled,” and 
that to be substantially limited in performing a maj or life activity under the ADA “an 
individual must have an impairment that prevents or severely restricts the individual 
from doing activities that are of central importance to most people’s daily livcs|V|”
Pub. L. No. 110-325, § 2(b)(4). Moreover, Congress amended the portion o f the ADA governing
construction of the term “disability,” such that “ [t]he definition of disability in this Act shall be
construed in favor of broad coverage o f individuals under this Act, to the maximum extent permitted
by the terms of this Act” and “[t]he term ‘substantially limits’ shall be interpreted consistently with
the findings and purposes of the [Act].” 42 U.S.C. § 12102 (4)(A), (B) (2006) (amended 2009). In
so stating, Congress overturned the definition of “substantially limits” put forward in Toyota and
directed the courts to interpret the term in a more inclusive manner.
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No. 08-5371
Jenkins v. N at’lBd. o f  Med. Examiners
Without the benefit o f these amendments, the district court relied on the Supreme Court’s 
analysis in Toyota, which was controlling precedent at the time the district rendered its decision. The 
district court concluded that Jenkins would only qualify for protection under the ADA if  his 
disability “precluded” him from performing reading tasks that were “central to most people’s daily 
lives.” Jenkins, 2008 WL 410237, at *3. In holding that Jenkins was not substantially limited in his 
ability to read, the district court relied on the very language from Toyota that Congress repudiated 
in the ADA Amendments Act. Compare id. at *4-5, with Pub. L. 110-325, § 2(b)(4). The change 
in the law has therefore undermined the district court’s holding, and the resolution of this case will 
require the district court to make a fresh application o f the law to the facts in light of the amendments 
to the ADA. The fact-bound nature of the question whether Jenkins is disabled under the revised 
Act counsels a remand without an appellate attempt to give more precise definition in the abstract 
to the revised Congressional language.
It can be said, though, that the categorical threshold scope o f the ADA’s coverage has been 
broadened. This breadth heightens the importance of the district courts’ responsibility to fashion 
appropriate accommodations. If the district court in this case finds that Jenkins is disabled under the 
more inclusive terms of the amended ADA, the court must still determine specifically what NBME 
must do to comply with the requirement that a professional licensing board offer its examination “in 
a place and manner accessible to persons with disabilities.” 42 U.S.C. § 12189. This nuanced 
determination is not governed by previous, voluntarily provided accommodations that Jenkins has
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No. 08-5371
Jenkins v. Nat 7 Bd. o f Med. Examiners
received, nor necessarily by what accommodations were required under the narrower previous 
definition of disability.
III.
Because this case is governed by the amended ADA and because the district court has yet to 
review the facts of Jenkins’s case under that law, we vacate the judgment and remand the case to the 
district court for further findings in light of the ADA Amendments Act.
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Kirk D. Jenkins, Plaintiff-Appellant, v. National Board of Medical Examiners, Defendant-Appellee.

https://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1150&amp;context=adaaa

Kirk D. Jenkins, Plaintiff-Appellant, v. National Board of Medical Examiners, Defendant-Appellee.

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