                                                      NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               _____________

                                    No. 10-2554
                                   _____________

                               SUSAN E. BRITTING,
                                          Appellant
                                       v.

           SECRETARY, DEPARTMENT OF VETERANS AFFAIRS
                          _____________

                 On Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                         District Court No. 1-08-cv-01747
                 District Judge: The Honorable A. Richard Caputo

                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                January 25, 2011

             Before: McKee, Chief Judge, and SMITH, Circuit Judge,
                        and STEARNS, District Judge*

                              (Filed: February 1, 2011)
                              _____________________

                                     OPINION
                              _____________________


SMITH, Circuit Judge.


*
  The Honorable Richard G. Stearns, United States District Judge for the United States
District Court of Massachusetts, sitting by designation.

                                           1
      Susan E. Britting began working as a medical transcriptionist for the

Department of Veterans Affairs (VA) in its Lebanon, Pennsylvania facility in

2002. Years before, Britting had been diagnosed with irritable bowel syndrome

(IBS). Around May of 2007, Britting‟s IBS flared up, resulting in an increase in a

variety of gastrointestinal symptoms. At about this same time, Britting‟s

performance as a transcriptionist deteriorated, adversely affecting her accuracy rate

and the number of lines she was able to transcribe per shift. By mid-June,

Britting‟s accuracy rate had fallen from 92% (a “Fully Successful” achievement

rate) to 85%. As a result, Jodi Moyer, Britting‟s supervisor, placed Britting on a

Performance Improvement Plan, which afforded Britting 90 days to demonstrate an

acceptable level of work. The Plan also provided for biweekly meetings between

Moyer and Britting to discuss her work performance.

      Within days, Britting provided Moyer with a letter from her physician, Dr.

Messmer, which confirmed Britting‟s affliction with IBS and her frequent need to

use the restroom. In an effort to accommodate that need, Britting‟s work station

was moved closer to the restroom. At about this same time, Moyer advised

Britting that, because of her diminished accuracy, Moyer would be reviewing

Britting‟s transcriptions before releasing them to the medical care provider.

      In mid-July, despite Moyer‟s directive, Britting herself released several

documents to the medical provider before Moyer could complete her review.

                                          2
Britting did this again in August, violating Moyer‟s order a second time. On

September 4, 2007, Britting received notice of a proposed three-day suspension

based on her persistent failure to follow Moyer‟s directive. Two days later,

Britting again released a transcribed report without Moyer‟s approval. Within a

week, Britting received notice that the proposed three-day suspension had been

replaced with a fifteen-day suspension. An assessment of her transcription

revealed an “[o]verall monthly accuracy average of 83%,” demonstrating that her

accuracy rate continued to deteriorate.

      The interim director of the Lebanon facility reviewed a report that

considered whether Britting‟s suspension was warranted in light of the twelve

factors set out in Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306-07 (1981). The

report noted that Britting‟s inability to follow the basic instruction not to release

her work before it had been reviewed had resulted in serious transcription errors.

Furthermore, Britting‟s lack of accuracy required the supervisor to review all of

her work, thereby reducing the department‟s overall productivity.

      On October 15, 2007, Britting received notice of the VA‟s intent to

terminate her employment. Although a vacancy existed at the time in the file

room, management rejected such a transfer because the job required a high degree

of accuracy and was incompatible with Britting‟s ability. Britting‟s termination

became effective on November 27, 2007. Britting challenged her suspension and

                                           3
termination, but the Merit System Protection Board upheld the VA‟s actions.

Britting then filed a complaint in the United States District Court for the Middle

District of Pennsylvania. Britting claimed that she was discriminated against on

the basis of her disability, thereby violating the Rehabilitation Act, 29 U.S.C. §

794(a).1 She also sought judicial review of the VA‟s decision to suspend and to

terminate her employment under 5 U.S.C. § 7703(b)(2).

       At the time of Britting‟s 2007 termination, the Americans with Disabilities

Act (ADA) was interpreted narrowly and the standard for determining whether an

individual had a disability included consideration of whether the impairment had a

permanent or long-term impact. The ADA Amendments Act of 2008 (ADAAA),

however, rejected this narrow interpretation and reinstated the broad scope of

protections available under the ADA. P.L. 110-325, §§ 2 and 3, 122 Stat. 3553,

3556 (Sept. 25, 2008). In amending the ADA, Congress set forth several rules of

construction governing the definition of disability, including that “[a]n impairment

that is episodic or in remission is a disability if it would substantially limit a major

life activity when active.” Id. § 3(4)(D), codified at 42 U.S.C. § 12102(4)(D).

       The VA moved for summary judgment, contending that Britting could not

establish a disability under the narrow interpretation of that term that prevailed at

1
   The Rehabilitation Act specifies that the “standards used to determine whether this
section has been violated . . . shall be the standards applied” under the Americans with
Disabilities Act. 29 U.S.C. § 794(d).

                                             4
the time she was terminated. Britting argued to the contrary. In addition, she

asserted that the ADAAA was retroactively applicable. The District Court

concluded that the ADAAA was not retroactively applicable and that Britting was

unable to establish a disability under the more demanding standard applicable at

the time of her termination. The District Court also concluded that there was

substantial evidence to support the Merit System Protection Board‟s decision. This

timely appeal followed.2

      We agree with the District Court that the ADAAA is not retroactively

applicable. In deciding whether a statute is retroactively applicable, the Supreme

Court has instructed that the “first task is to determine whether Congress has

expressly prescribed the statute‟s proper reach.” Landgraf v. USI Film Products,

511 U.S. 244, 280 (1994). If Congress‟s intent is not clear, “the court must

determine whether the new statute would have retroactive effect, i.e., whether it

would impair rights a party possessed when he acted, increase a party‟s liability for

past conduct, or impose new duties with respect to transactions already

completed.” Id. Nothing in the ADAAA‟s text expressly prescribes that the

2
   The District Court exercised jurisdiction over the Rehabilitation Act claim under 28
U.S.C. § 1331 and over the Merit Systems Protections Board appeal under 5 U.S.C. §
7703(b)(2). Appellate jurisdiction exists under 28 U.S.C. § 1291. “We exercise plenary
review over the District Court‟s grant of summary judgment” and “apply the same
standard that the District Court should have applied.” Shuman ex rel. Shertzer v. Penn
Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005) (internal citations omitted).


                                           5
statute is retroactively applicable. Furthermore, in expanding the definition of

disability, the ADAAA clearly increased the VA‟s liability for past conduct. As a

result, we conclude that the ADAAA cannot be applied retroactively.3

      Britting argues that the new statute is nevertheless applicable because it

effects a waiver of sovereign immunity. As a result, she contends that it is a

jurisdictional statute, which (as Landgraf acknowledged) is a kind of legislation

that is “regularly applied” retroactively. 511 U.S. at 274. The Landgraf Court‟s

acknowledgment, however, was qualified:

      Application of a new jurisdictional rule usually “takes away no
      substantive right but simply changes the tribunal that is to hear the
      case.” Present law normally governs in such situations because
      jurisdictional statutes “speak to the power of the court rather than to
      the rights or obligations of the parties[.]”

Id. (citations omitted). By using the term “usually,” Landgraf signaled that there

may be instances where a jurisdictional statute may not be applied retroactively.

Such an instance may arise where the new jurisdictional statute affects a party‟s

substantive rights or obligations. Id. Indeed, the Court concluded in Hughes

3
  We are not alone in this conclusion. Our sister circuits, which have considered the
question, have uniformly concluded that the ADAAA is not retroactively applicable. See
Ragusa v. Malverne Union Free Sch. Dist., 381 F. App‟x. 85, 87 n.2 (2d Cir. 2010);
Nyrop v. Indep. Sch. Dist. No. 11, 616 F.3d 728, 734 n.4 (8th Cir. 2010); Thornton v.
United Parcel Serv., Inc., 587 F.3d 27, 34 n.3 (1st Cir. 2009); Becerril v. Pima County
Assessor’s Office, 587 F.3d 1162, 1164 (9th Cir. 2009); Fredricksen v. United Parcel
Serv., 581 F.3d 516, 521 n.1 (7th Cir. 2009); Lytes v. DC Water & Sewer Auth., 572 F.3d
936, 940-42 (D.C. Cir. 2009); Milholland v. Sumner County Bd. of Educ., 569 F.3d 562,
565-67 (6th Cir. 2009); EEOC v. Agro Distribution, LLC, 555 F.3d 462, 469 n.8 (5th Cir.
2009).
                                           6
Aircraft Co. v. United States, 520 U.S. 939 (1997), that a new statute, which

eliminated an affirmative defense in qui tam actions, “create[d] jurisdiction where

none previously existed; it thus speaks not just to the power of a particular court

but to the substantive rights of the parties as well. Such a statute, even though

phrased in „jurisdictional‟ terms, is as much subject to our presumption against

retroactivity as any other.” Id. at 951. Thus, we conclude that the ADAAA, even

though it may be jurisdictional in nature with regard to the VA, is not retroactively

applicable because it affects the substantive rights of the parties.

      Having concluded that the ADAAA is not retroactively applicable, we turn

to Britting‟s contention that the District Court erred in its determination that she

did not establish a disability under the more demanding pre-ADAAA standard.

We conclude that the District Court did not err. Britting confirmed that her IBS

was episodic in nature and did not afflict her every day.

      Finally, Britting contends that her suspension and termination are not

supported by substantial evidence. Substantial evidence “„means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.‟”

Bradley v. Veterans Admin., 900 F.2d 233, 234 (Fed. Cir. 1990) (quoting Consol.

Edison Co. v. Labor Bd., 305 U.S. 197, 229 (1938)). Our review of the record

reveals that there is substantial evidence to support the VA‟s actions.




                                           7
         For the reasons set forth above, we will affirm the judgment of the District

Court.




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