                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 21 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



DAVID ELIAS,                                     No. 11-57056

               Plaintiff - Appellant,            D.C. No. 8:09-cv-01490-JST-
                                                 MLG
  v.

JANET A. NAPOLITANO, in her official             MEMORANDUM *
capacity as Secretary of Department of
Homeland Security; DEPARTMENT OF
HOMELAND SECURITY,

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Central District of California
                  Josephine Staton Tucker, District Judge, Presiding

                              Submitted May 14, 2013 **

Before:        LEAVY, THOMAS, and MURGUIA, Circuit Judges.

       David Elias appeals pro se from the district court’s summary judgment in his

disability discrimination action alleging claims under, among other statutes, the


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Americans with Disabilities Act (“ADA”) and the Rehabilitation Act of 1973. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo, Walton v. U.S.

Marshals Serv., 492 F.3d 998, 1005 (9th Cir. 2007), and we affirm.

      The district court properly granted summary judgment on Elias’s claim

under the Rehabilitation Act because Elias failed to raise a genuine dispute of

material fact as to whether his diabetes constituted a disability or resulted in him

being regarded as disabled, and whether he suffered employment discrimination on

the basis of a disability. See Johnson v. Bd. of Trs. of Boundary Cnty. Sch. Dist.

No. 101, 666 F.3d 561, 564 & n.1 (9th Cir. 2011) (expansion of how “disability” is

defined under the ADA Amendments Act of 2008 is effective January 1, 2009, and

does not apply retroactively); Walton, 492 F.3d at 1005-06 (discussing elements

of prima facie case of disability discrimination under the Rehabilitation Act, as

incorporated from standards of liability under the ADA, as well as the

requirements for a “regarded as” claim); see also Fraser v. Goodale, 342 F.3d

1032, 1038, 1041-43 (9th Cir. 2003) (explaining that whether a person is disabled

under comparable ADA provision is an individualized inquiry, and finding a

triable dispute as to whether plaintiff’s diabetes was a disability because her

treatment regimen substantially limited her in performing a major life activity).

      Elias’s contentions regarding the alleged admission of “junk science” and


                                           2                                      11-57056
his entitlement to reasonable accommodations are unpersuasive.

      AFFIRMED.




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