                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 10-1548


PHILLIP L. COCHRAN,

                Plaintiff - Appellant,

           v.

ERIC H. HOLDER,    JR.,   Attorney   General    in   his   official
capacity,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. James C. Cacheris, Senior
District Judge. (1:06-cv-01328-JCC-TRJ)


Argued:   May 10, 2011                         Decided:    June 21, 2011


Before GREGORY and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Phoebe Leslie Deak, LAW OFFICE OF LESLIE DEAK,
Washington, D.C., for Appellant.     Ian James Samuel, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee.
ON BRIEF: Tony West, Assistant Attorney General, Marleigh D.
Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.;
Neil H. MacBride, United States Attorney, Alexandria, Virginia,
for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

      This appeal arises out of a federal employee’s claim of

disability discrimination filed pursuant to the Rehabilitation

Act of 1973 (the “RA”), 29 U.S.C. § 791 et seq.              Plaintiff-

Appellant Phillip Cochran (“Cochran”), a former Deputy United

States Marshal (“DUSM”), appeals the district court’s grant of

summary judgment to the United States Marshals Service (“USMS”)

on his claims that the USMS discriminated against him based on a

hearing disability.      For the following reasons, we affirm.



                                    I.

      As this is an appeal from a grant of summary judgment, we

present the facts in the light most favorable to the appellant.

Pueschel v. Peters, 577 F.3d 558, 563 (4th Cir. 2009).

                                    A.

      Cochran served as a DUSM from 1986 to 1993.        DUSMs’ primary

mission is “to provide for the security” of judicial personnel.

28   U.S.C.   §566(a).    Their   responsibilities    generally   include

protecting witnesses, providing safe transportation and handling

of prisoners, and apprehending fugitives.            To help ensure the

agents’ safe and effective performance of these duties, the USMS

imposes a demanding set of medical fitness requirements.              Of

particular relevance at the time of Cochran’s retirement was the

agency’s hearing standard.        DUSMs were required to “be able to

                                    2
hear [a] whispered voice at 15 feet with each ear.”                                     J.A. 29.

Significantly, DUSMs had to meet the minimum hearing requirement

without the use of a hearing aid.                    This was due to the risk of

hearing aids being “knocked out during a struggle, not being

worn    by    the    individuals      when    they    should          be,”    or    not    being

“tuned or adjusted properly.”                J.A. 290-91.

       In    November      1992,     following    a       required      periodic         medical

examination         at    work,    Cochran    learned          that    he     suffered      from

hearing loss which kept him from satisfying the USMS’s hearing

standards        and       thereby       disqualified            him        from        service.

Audiologist Andrea McDowell specifically reported that Cochran’s

“test        results       revealed      a     moderate          sloping           to     severe

sensorineural hearing loss bilaterally.”                        J.A. 310.          For further

testing,       Cochran       was     referred        to        Dr.     Mark     Winter,       an

otolaryngologist, who reported to the USMS in February 1993 that

Cochran suffered a more “severe level of hearing loss” in the

high frequencies, although his “binaural hearing loss would be

less than 10%” overall “due to the better hearing in the lower

frequencies.”            J.A. 317.    Cochran’s high frequency hearing loss

was     “consistent        with    his   history          of    noise       exposure,”       and

manifested itself in an inability to “hear an ambulance easily

while driving to the scene of an investigation” and a difficulty

hearing “people in background noise.”                     J.A. 316.



                                              3
       When Cochran was later asked in a sworn deposition whether

his “hearing trouble [was] giving [him] any problems on a day-

to-day basis” as of his 1992 hearing examinations, he answered

“[a]bsolutely         not.”      J.A.     254.            He        testified      that    he    had

previously been fitted for hearing aids in 1989, but did not

wear    them.        Cochran     gave    contradictory                explanations         for    not

wearing      his    hearing     aids,     saying          at    one        point   that    it    was

because he         “didn’t    need     them”        and    “didn’t          have   any    problems

doing [his] job,” J.A. 98, but also saying that they were not

“effective,” J.A. 326.

       On    March    23,     1993,     the    USMS       informed          Cochran       that    his

hearing loss “present[ed] a significant risk” to him and others

in     the   work     environment,            and     recommended             he   “contemplate

voluntary       disability       retirement.”                  J.A.    320.        The     Service

explained that if Cochran chose not to retire, it was “prepared

to propose [his] removal based on medical unfitness.”                                      Id.    On

April 5, 1993, Cochran advised the USMS that he had opted for

voluntary       disability       retirement.                   In     his     application        for

disability         retirement,    Cochran           stated          that    his    hearing       loss

prevented him from performing his duties as a DUSM and that

continued exposure to loud noise would put him at risk of losing

“all of [his] hearing.”               J.A. 32.        His disability retirement was

granted and became effective June 1993.



                                               4
      In    December        1994,    more      than           a    year     after     Cochran’s

disability retirement took effect, the USMS Director announced

the agency’s contemplation of a change to the hearing standards

which would allow the use of hearing aids during DUSM medical

testing.      In light of this proposed change, Cochran contacted

the   USMS      Director       in     a     January            1995       letter      requesting

reinstatement.         The USMS responded that the proposals to the

medical     standards    were       still    under        review        but    that    it   would

consider     Cochran’s       request        once        the       medical     standards      were

finalized.

      Shortly    thereafter,          Cochran           made      an    additional,         verbal

request for reinstatement on the ground that his hearing had

recovered.      Because the relevant regulations did not provide for

immediate reinstatement once an employee had been away from his

job   for     more      than    one       year,          the       USMS       construed      this

communication     as    a    request      to       be    placed        on   the    Reemployment

Priority List (“RPL”) via the Department of Justice’s Priority

Placement and Referral System (“PPRS”). 1                         The agency responded to

Cochran in a letter explaining that, in order to place him on

the list, it needed “a written request,” “an Office of Workers’


      1
       As of 1995, the relevant regulation provided that “A[n] .
. . employee . . . separated because of a compensable injury or
disability . . . who has fully recovered more than 1 year after
compensation began is entitled to be placed on the RPL.”       5
C.F.R. § 330.204(a) (1995).

                                               5
Compensation Programs [OWCP] report or other evidence showing

[Cochran was] recovered,” and a completed “registration form for

the PPRS.”      J.A. 374.     The record “provides no indication that

[Cochran]     completed     any     of        the   paperwork     necessary   for

reinstatement.”     J.A. 125.       Instead, in September 1995, Cochran

filed a formal administrative complaint with the USMS’s equal

employment officer alleging discriminatory discharge and seeking

immediate reinstatement.          He explained that placement on the RPL

was “not what [he] want[ed].”            J.A. 383.

                                         B.

      Cochran’s case followed a lengthy administrative path that

we summarized in our prior decision, Cochran v. Holder, 564 F.3d

318, 320 (4th Cir. 2009).             After being denied administrative

relief, Cochran filed a civil complaint in federal court.                      He

alleged two counts of employment discrimination under the RA.

First,   he   claimed      that    his        voluntary   retirement     in   1993

constituted a constructive discharge because the USMS terminated

him   “solely     because     of     his       disability       and/or   perceived

disability,” and that the USMS failed to provide him with a

reasonable accommodation in lieu of retirement.                      J.A. 21-22.

Second, Cochran claimed that the USMS impermissibly “refused”

his requests for reinstatement in 1995, and that its refusal to

immediately     reemploy    him    either      because    its   policy   regarding



                                          6
hearing aids was changing or because his hearing had recovered,

also constituted discrimination.                J.A. 22-23.

      The   USMS       responded     to     the      filing          of    Cochran’s       civil

complaint with a motion to dismiss the complaint as untimely,

which the district court granted.                 Cochran, 564 F.3d at 320.                  We

reversed and remanded for further proceedings.                            Id. at 325.

      Following        additional     discovery           on    remand,        the   district

court   granted    summary        judgment      to    the       USMS,      concluding      that

Cochran was not “disabled” within the meaning of the RA.                                   J.A.

39.     The      court    specifically          found          that       Cochran    was    not

substantially limited in the major life activities of hearing or

working, that there was no record of his disability, and that he

was   not   regarded      as     disabled    by      the       USMS.         The   court    also

concluded that Cochran was not a “qualified individual” for the

position    of     a     DUSM,     and    that       he        was     not     eligible     for

reinstatement.         J.A. 45-46, 54.

      Cochran moved for reconsideration on the basis of newly

discovered evidence.           The district court, construing the motion

as one for relief from the judgment under Fed. R. Civ. P. 60(b)

so as to render it timely, denied the motion on the ground that

Cochran had failed to establish the existence of “extraordinary




                                            7
circumstances”    warranting    such       relief.     J.A.    57,     67.      This

appeal followed. 2



                                      II.

     On   appeal,    Cochran   first       disputes   the     district       court’s

determination that he was not “disabled” under the RA in 1993 or

1995 and that his claims of discrimination therefore failed.                     We

review the district court’s grant of summary judgment de novo,

viewing the facts in the light most favorable to Cochran, and

drawing all reasonable inferences in his favor.                See Lettieri v.

Equant    Inc.,   478   F.3d   640,   642     (4th    Cir.    2007).         Summary

judgment is appropriate if the record shows “there is no genuine


     2
       The government argues that the bulk of this appeal is not
properly before us because the district court abused its
discretion in finding that Cochran demonstrated the “excusable
neglect” necessary to extend the deadline for filing a notice of
appeal under Fed. R. App. P. 4(a)(5). Cochran responds that the
government is precluded from advancing its argument because it
failed to file a cross appeal, which is required for an appellee
to argue for the reversal of a motion to extend the deadline to
file   an  appeal.     Assuming,  without   deciding,  that   the
government’s claim is properly before us, we nevertheless find
it unavailing. We review the district court’s grant of a filing
extension for abuse of discretion.    Thompson v. E.I. DuPont de
Nemours & Co., Inc., 76 F.3d 530, 532 (4th Cir. 1996).      Under
this deferential standard, we find that the district court’s
determination that excusable neglect existed in this case is
supportable.   In particular, the record reflects that Cochran’s
attorney suffered a debilitating condition requiring major
surgery that left her unable to work during the time the notice
of appeal should have been filed.     See Plaintiff’s Motion for
Extension of Time to File Notice of Appeal, 06-cv-1328, Doc. No.
81 (E.D. Va. April 12, 2010).

                                       8
dispute as to any material fact and that the [USMS] is entitled

to a judgment as a matter of law.”                       Fed. R. Civ. P. 56(a).

                                            A.

       We     begin     by    addressing        Cochran’s        claim       that    the     USMS

discriminated           against    him     with          respect        to   his     voluntary

retirement       in     1993.      To     establish          a   prima       facie    case,     a

plaintiff        must     first    show     he       was     “an        individual     with    a

disability under the RA.” 3                 Id. at 269; see also Pollard v.

High’s of Balt., Inc., 281 F.3d 462, 467 (4th Cir. 2002) (noting

that       the   plaintiff      bears     the        burden      of      demonstrating        his

disability).            The     standards       used       to    determine         whether     an

employer has discriminated under the RA are the same standards

applied       under     the   Americans         with       Disabilities       Act     of     1990

(“ADA”).         Hooven-Lewis, 249 F.3d at 268; see also 29 C.F.R.

§ 1614.203(b).           Under both the RA and the ADA, a plaintiff can

make the requisite showing of a disability in one of three ways:

(1) by demonstrating he has “a physical or mental impairment

that       substantially      limits      one       or    more     of    [his]      major    life


       3
       A plaintiff may bring a claim under the RA either in the
form of a “failure to accommodate” claim or a “disparate
treatment” claim.    Throughout these proceedings, Cochran has
attempted to allege both types of claims.     For either claim,
however, the first step in our analysis is identical:        the
plaintiff must establish that he was a qualified individual with
a “disability” within the meaning of the Act.         Rhoads v.
F.D.I.C., 257 F.3d 373, 387 n.11 (4th Cir. 2001); Hooven-Lewis,
249 F.3d at 269.

                                                9
activities,” (2) by revealing “a record of such an impairment,”

or (3) by proving he is “regarded as having such an impairment.”

29 C.F.R. § 1630.2(g)(1); see also id. § 1614.203(b).

       As an initial matter, we address Cochran’s argument that

the    standards        announced     in     Toyota      Motor      Manufacturing    v.

Williams, 534 U.S. 184 (2002), and Sutton v. United Air Lines,

Inc., 527 U.S. 471 (1991), for determining whether an individual

is “disabled” “should only have limited applicability to this

case.”          Appellant’s     Br.    at        19.     As      Cochran’s     briefing

emphasizes, Congress amended the ADA in 2008 to correct what it

viewed as an overly restrictive interpretation of the statute’s

terms that had been adopted by the Supreme Court in Toyota and

Sutton.      See ADA Amendments Act of 2008, Pub. L. No. 110-325

(“ADAAA”).         The    ADAAA     made     it    easier     for    a   plaintiff   to

demonstrate his disability under the RA.                         In light of these

changes, Cochran argues that we should “subordinate” the Toyota

and Sutton decisions to earlier court rulings that employ a more

lenient standard.         Appellant’s Br. at 21.

       In order to do as Cochran asks, we would need to find that

the ADAAA applies retroactively.                  While we have yet to rule on

this issue, all circuits to consider the question have found

that   the      ADAAA    does   not    apply       retroactively.          See,    e.g.,

Becerril v. Pima Cnty. Assessor’s Office, 587 F.3d 1162, 1164

(9th     Cir.    2009)     (holding        that    the   ADAAA      does     not   apply

                                            10
retroactively and collecting cases from the D.C., Fifth, Sixth,

and Seventh Circuits reaching the same conclusion).                              Indeed,

“absent clear congressional intent favoring such a result,” we

may    not   apply   statutes        retroactively.           Landgraf    v.    USI    Film

Prods., 511 U.S. 244, 280 (1994); see also Chambers v. Reno, 307

F.3d 284, 288 (4th Cir. 2002).                  The ADAAA provides that “[t]his

Act and the amendment made by this Act shall become effective on

January 1, 2009.”              ADAAA § 8, 122 Stat. at 3559.                    Far from

demonstrating a clear retroactive intent, the amendment evinces

a   prospective      intent      with     its    delayed      effective      date.       We

therefore     follow      our   sister      circuits     in    concluding       that    the

ADAAA does not apply retroactively.                  This conclusion forecloses

Cochran’s argument that we should “subordinate” the holdings of

Toyota and Sutton to the amendments and apply a more relaxed

standard for purposes of this appeal.

                                            1.

       We turn now to whether Cochran has raised genuine issues of

fact    as   to    whether      he    was    actually      disabled,        regarded     as

disabled, or had a record of disability at the time of his

retirement.          We   begin      by   considering         if,   under      the    first

disability        formulation        enumerated     in     the      RA,   Cochran      was

actually disabled.          We can find that he has met his burden on

this    point     only    if    he    has    adduced     sufficient       evidence      to

demonstrate that when he applied for voluntary retirement in

                                            11
1993,    he    had      a    “physical           or    mental    impairment”    that

“substantially limit[ed]” a “major life activit[y].”                       29 C.F.R.

§ 1630.2(g)(1)(i).

     The parties agree that hearing is a major life activity

contemplated by the Act, see id. at § 1630.2(i)(1)(i), and that

Cochran’s     hearing       was   at   least          somewhat   impaired. 4    They

disagree, however, as to whether his hearing loss “substantially

limited” his hearing.             The Supreme Court clarified in Toyota

that “substantially” sets a high bar:                    “an individual must have

an impairment that prevents or severely restricts the individual

from” performing a major life activity.                   Toyota, 534 U.S. at 198

(emphasis added).           Medical diagnoses alone cannot demonstrate

substantiality; instead, a plaintiff must offer “evidence that

the extent of the limitation caused by their impairment in terms

of   their    own    experience        is    substantial.”           Id.   (internal

quotations and alterations omitted) (emphasis added).

     The district court relied on three pieces of evidence to

find that Cochran could not make out a prima facie case that his

partial hearing loss severely restricted the major life activity

of hearing.      First, when asked in a deposition about his own

     4
       The district court also analyzed whether Cochran’s hearing
loss might significantly limit the major life activity of
“working” and concluded that it did not.       However, Cochran’s
briefing on appeal focuses only on the activity of “hearing.”
We therefore limit our analysis to the impairment of that
activity.

                                            12
experience   and    whether    his    hearing     was    “giving       [him]    any

problems on a day-to-day basis” as of his 1992 hearing tests,

Cochran   replied   “[a]bsolutely      not.”     J.A.    254.      Second,      the

otolaryngologist’s       February    1993   report   found      that    Cochran’s

hearing loss was “less than 10%.”            J.A. 317.     Finally, although

Cochran had been fitted for hearing aids in 1989, he chose not

to wear them because he “didn’t need them.”             J.A. 98.

     On appeal, Cochran argues that the district court ignored

evidence in the record that created genuine issues of material

fact as to the degree of his hearing impairment and whether it

qualified as “substantially limiting.”            For example, as we have

noted, Cochran also testified that he did not wear his hearing

aids because they were not “effective,” J.A. 326, and that the

type of digital hearing aid that corrected for his particular

type of hearing loss was unavailable in 1993 and not provided to

him until 1995.      As to the substantiality of his hearing loss,

Cochran   points    to   his   disability      application      where    he    also

stated that his hearing loss “ha[d] created many problems at

work and at home.”         J.A. 326.        Cochran’s arguments, however,

misperceive the nature of summary judgment.              He cannot create a

genuine issue of material fact by pointing to contradictions in

his own testimony.        “[I]t is well established that ‘a genuine

issue of fact is not created where the only issue of fact is to

determine which of the two conflicting versions of a party’s

                                      13
testimony is correct.’”                 Erwin v. United States, 591 F.3d 313,

325 n.7 (4th Cir. 2010) (quoting Halperin v. Abacus Tech. Corp.,

128 F.3d 191, 198 (4th Cir. 1997)) (alterations omitted); see

also S.P. v. City of Takoma Park, Md., 134 F.3d 260, 274 n. 12

(4th       Cir.     1998)    (disregarding            affidavit     of    witness      that

contradicted witness’s own prior sworn deposition testimony). 5

Cochran’s         sworn   statement,       under      oath   and    under      penalty   of

perjury, that at the time of his 1992 hearing examinations, his

hearing was “absolutely not” giving him trouble on a day-to-day

basis cannot be overcome by his later expositions in differing

circumstances.

                                               2.

       We    next      consider        whether,     under    the    second     disability

formulation, Cochran has established he has a “record of such an

impairment.”           29 C.F.R. § 1630.2(g)(1)(ii).               An individual has a

record      of     a    disability       “if    the    individual        has   a     history

of . . . a         mental    or    physical         impairment     that    substantially

limits one or more major life activities.”                        Id. at 1630.2(k)(1).

Cochran’s argument under this category fails for the same reason

that       his    claim     to    an     actual      disability     under      the    first

       5
       Cochran also seeks to rely on information contained in a
1995 letter from the Department of Labor’s Office of Workers’
Compensation Programs (“OWCP”).   However, as Cochran’s counsel
acknowledged at oral argument, the district court denied the
admission of this letter into evidence, and it is therefore not
before us.

                                               14
formulation does.        While there are reports establishing that

Cochran no longer met the USMS hearing standards, those same

reports indicated that, despite a more “severe level of hearing

loss” in the high frequencies, Cochran’s “binaural hearing loss

would be less than 10%” overall “due to the better hearing in

the   lower   frequencies.”        J.A.      317.      This   record     does   not

establish a history of impairment that “substantially limit[ed]”

Cochran’s hearing.      29 C.F.R. § 1630.2(k)(1).

                                        3.

      Finally,    we address whether Cochran demonstrated that he

was “disabled” because the USMS “regarded” him as such.                          29

C.F.R.    § 1630.2(g)(1)(iii).           Under       this   third     formulation,

Cochran must show that the USMS “entertain[ed] misperceptions

about    [him]”   by   believing   he     had    a    “substantially     limiting

impairment” that he did not in fact have or that was not “so

limiting.”    Sutton, 527 U.S. at 489.               Simply believing Cochran

had an impairment is not enough under this inquiry.                       Rather,

Cochran must prove that the USMS believed his hearing condition

“substantially limit[ed] a major life activity.”                Id.

      In attempts to meet this burden, Cochran argues that even

if we find as a matter of law that he was not actually disabled

under the RA as of 1993, his employer believed that he was.                     He

points to a 2000 agency decision issued by the Department of

Justice’s Complaint Adjudication Office which states that the

                                        15
“record supports the conclusion that [Cochran] was an individual

with    a    disability.”          J.A.      129.       However,     the      decision         also

explained that “this is not the only possible conclusion” given

the    intervening         Supreme      Court       precedent      establishing           a    more

stringent          definition          of     “disability.”                  Id.     at        n.6.

Consequently, the decision “assume[d],” without deciding, that

Cochran was an individual with a disability, and proceeded to

deny    Cochran’s        claim    on    other       grounds.       Id.        Such     evidence

simply does not establish that the USMS “regarded” Cochran as

disabled within the meaning of the RA.

       In    sum,    Cochran      has       failed   to     demonstrate       that,       at    the

point       he   opted     for    voluntary      retirement        in    1993,       he       was   a

disabled         individual       under       any      of    the    three          formulations

articulated in the RA.                  We need go no further to affirm the

district         court’s   grant     of      summary    judgment        to   the     USMS      with

respect to Cochran’s first claim of discrimination.

                                               B.

       Cochran’s         second     claim      of      discrimination          involves         his

requests for reinstatement in 1995.                       As with the first claim, in

order to survive summary judgment on this count, Cochran must

first prove he is a qualified individual with a “disability”

under the meaning of the RA.                     Hooven-Lewis, 249 F.3d at 269.

Whereas we earlier applied the analysis to Cochran at the time



                                               16
he opted for voluntary retirement, here we apply it to him at

the time he requested reinstatement.

     Cochran   was    not   actually   “disabled”   when   he   sought

reinstatement to the USMS in 1995.       In a letter to Joseph Moy,

USMS Chief of the Retirement and Benefits Branch, Cochran wrote

     I now have new hearing aids as of the first part of
     February 1995.      According to the test by the
     audiologist, without hearing aids my hearing is within
     the acceptable level of the standards I was hired
     under.    With hearing aids it is well above the
     standards. . . . All of this amounts to the following
     request[] . . . [t]o immediately have my job
     reinstated.

J.A. 203.   To the extent Cochran requested reinstatement because

the USMS had changed its policy to allow for the use of hearing

aids during testing, his own account demonstrates that he was

not disabled because the hearing aids he used corrected for any

hearing deficiency.     As the Supreme Court explained in Sutton,

for purposes of determining if an individual is “disabled” under

the RA, we consider whether “a person is taking measures to

correct for, or mitigate, a physical or mental impairment.”       527

U.S. at 482 (finding that petitioners were not “disabled” under

the ADA, because the corrective measures actually taken by them

corrected their vision to “20/20 or better”) (emphasis added). 6


     6
       Because Cochran testified that he did not begin using
hearing aids until after his voluntary disability took effect,
we only consider the impact of that corrective measure on his
second claim involving reinstatement in 1995, when he was
(Continued)
                                  17
Inasmuch      as   Cochran   requested        reinstatement   because   he   had

recovered his hearing sufficiently to meet the hearing standards

without the use of hearing aids, his own claims show he suffered

no   “impairment,”     let   alone   a    substantial    one.     Either     way,

Cochran has only presented evidence that his condition improved

between 1993 and 1995.        If he was not actually disabled in 1993,

then he certainly could not have been actually disabled in 1995.

      Cochran has introduced no evidence to suggest that he had a

record of disability in 1995 or that the agency regarded him as

disabled. 7    His failure to prove a “disability” under the RA also

forecloses his second claim of discrimination.



                                     III.

      For the foregoing reasons, we affirm the judgment of the

district court.

                                                                        AFFIRMED




actually using hearing aids.    Sutton, 527 at 482 (considering
“the   effects  of  those measures”    actually  taken   by  the
petitioners).
     7
       In fact, Cochran attempted (unsuccessfully) to introduce
into evidence a letter from the OWCP that purported to show that
his employer regarded him as recovered and without the need for
hearing correction. See J.A. 247-250.

                                         18
